FINAL REPORT

January 1, 2001-December 31, 2004

RIGHT TO DEVELOPMENT PROJECT
Ministry of Foreign Affairs of the Netherlands
Activity Number: WW 180301

COUNTRY STUDY No. 4:
THE RIGHT TO DEVELOPMENT IN INDIA

François-Xavier Bagnoud Center for Health and Human Rights
Harvard School of Public Health

INDIA COUNTRY STUDY
ON

THE RIGHT TO DEVELOPMENT

C entre for D evelopm ent
and

H um an R ights
New Delhi
CDHR Team
Moushumi Basu (Principal Author)
Rakkee Thimothy
Reji.K. Joseph
Kaushik Ranjan Bandyopadhyay
Anit Nath Mukherjee.
Our sincere thanks to
Arjun Sengupta
Archna Negi
ii

India Country Report
Table of Contents

I

Introduction

1

1.1 The Essential Elements of the Right to Development Approach

6

1.2

12

Right to Development in the Context of the Indian Development
Experience

II

The Institutional Framework Supporting a Human Rights

24

Approach in India
III

The Rights to Food, Health and Education

34

3.1

The Right to Food

37

3.2

The Right to Health

54

3.3

The Right to Education

64

IV

International Cooperation and the Right to Development in India

69

V

Right to Development in the Future

75

References

83

iii

iv .

The Constitution of India (New Delhi. For details see Subhash C. freedom of movement and residence (Article 13). 1986).3 However.4 While the 1 Demands for some of the fundamental rights were made as early as in 1918 at the Bombay session of the Indian National Congress. the right to constitutional remedies (Article 8). political. ten of the nineteen fundamental rights incorporated in the Nehru Committee Report were included in the Constitution of India in a substantially unchanged form. Other references include Granville Austin. drafted roughly around the same period as the Universal Declaration of Human Rights.1 Providing an important basis to the nationalist discourse on freedom and numerous other subaltern struggles. The Motilal Nehru Committee appointed in 1928 by the All Parties Conference in its report declared that the first concern of the people of India was to secure justiciable fundamental human rights. Interestingly. social and cultural). 4 Discussion within the Constituent Assembly. indicates that the Advisory Committee’s classification of rights into two categories of justiciable and non-justiciable rights did not have unanimous acceptance. the provisions of equality contained in Article 7. like Mr. The Commonwealth of India Bill. 18th edn. conscience and religion (Article 18). freedom of thought. the notion of rights has played an important role in defining certain fundamental precepts of the obligations and duties that the Indian State has towards its citizens. For example. D. Introduction to the Constitution of India ( New Delhi. Social Movements in India: A Review of Literature (Delhi. economic. Bakshi. which was responsible for drawing up the Indian Constitution. finalised by the National Convention in 1925 embodied a specific “declaration of rights” like equality before law. 2 The first civil liberties association in the country was formed in 1936 in Bombay with Rabindranath Tagore as its president. pp 8-42. 3 Many of the articles of the UN Declaration find specific mention as legally guaranteed rights in the Indian Constitution. The basic idea behind setting up of the Indian Civil Liberties Union was to formalise the right to freedom of expression and association that the Indian people vis-à-vis the Government. ed. assembly and religion etc. Representing “claims” made upon the State. 1985). the Indian Constitution makes a fundamental distinction between justiciable and non-justiciable rights. Some members for example. pp. M. The Indian Constitution: Cornerstone of a Nation (Bombay. Basu. Kashyap. For a comprehensive background of civil and democratic rights movement in pre and post Independence see Ghanshyam Shah. freedom of speech.Introduction The discourse on rights in India predates the formation of the modern Indian state. unlike the Universal Declaration that does not distinguish between sets of rights (civil. 2004). 2 The Constitution of India. A resolution passed at the Madras session of the Congress in 1927 reiterated the demand for fundamental rights. provides for a separate chapter on the protection and promotion of Fundamental Rights. Somnath Lahiri from Bengal drew 1 .. Violation of Democratic Rights in India (Bombay.R. Our Constitution: An Introduction to India’s Constitution and Constitutional Law (Delhi 2004 reprint). 1997. D. 2000). Desai. are some of the important provisions of the UDHR that have been accorded the status of fundamental rights in the Indian Constitution. 242-262 and A.) and P. The Karachi Congress Resolution of 1931 formally adopted the resolution on Fundamental Rights. rights have formed an integral part of the Indian polity.

The possibility of the implementation of the right to development in India remains as yet a largely untested proposition. As an activity. Promatha Ranjan Thakur again from Bengal specifically called for making economic rights justiciable. economic. the progress made in adopting a holistic and comprehensive approach that characterises the right to development has been slow. Keeping in mind the constraints— political. Similarly Mr. 29th April. 2 . there exists a strong case for exploring how the right to development approach may be adopted in the Indian context. 1947. The attention to the difficulties of making a fine line of distinction between justiciable and non-justiciable rights. Although there is recognition of the need to institutionalise more democratic norms of governance. builds on the normative and legal foundations for linking rights with development in the Indian context. and cultural— that typically inhibit development efforts in low and middle-income countries. social. development has come to signify different things to different classes and groups of people. as well as the contradictions and challenges confronting development within the country. The present study on the implementation of the right to development. Enlisted as Directive Principles of State Policy. while certain elements of a rights-based approach have been institutionalised. social and cultural rights are relatively less explicit. these do not enjoy the justiciable status of fundamental rights. The term development has been open to several conflicting interpretations. At the policy level. discussions on the specifics of the right to development at the formal level have been limited.protection and promotion of civil and political rights is legally binding upon the State. While India is an official signatory to the UN Declaration on the Right to Development. but are nevertheless important as they embody policy guidelines that are to be progressively realised and observed by the State in good faith. the responsibilities of promoting economic. linkages to the right to development have not been sufficiently explored. Debates: Constituent Assembly of India.

4/1999/WG. human development. See Philip Alston. the demand for the right to development (read along with the call for a New International Economic Order) was focused on eliminating injustice and inequality of nations and peoples. Harvard Human Rights Yearbook. pp. Oyvind Waeenskjold Thiis. Report of the Independent Expert on the Right to Development. 2000).7 In the last few years. with little reference in the beginning to the concept or instruments of human rights. Making Space for New Human Rights: The Case of the Right to Development. 7 Cited primarily as a claim to development by the developing world countries against the more developed states. 2000 for a historical account of the debates and discussions surrounding the right to development in the international fora. Taken to be a natural corollary of the right to self-determination. “The Right to Development as Human Right”. 3-40.amazingly fast growth of consumerism in the contemporary period. the right to development has been amongst the most controversial issues in contemporary international relations. 1988. for others it is the positive outcomes that flow from growth such as fulfillment of basic needs. Keba M’baye. 1984). The Right to Development: A Report to NORAD (Oslo. Dilemmas of Development: Reflections on the Counter-Revolution in Development Theory and Policy (Oxford. For a useful summary of the relevant provisions see Commission on Human Rights. Arjun Sengupta. John Toye. 1987) and Amartya Sen. 1999) for an elaboration of the changing theoretical notions of development. Keba M’baye was the first to interpret the claim of the right to development as a human right. 6 The process of development. Harvard School of Public Health. 27 July.5 The conceptualisation of development as a process that consciously focuses on the realisation of the human rights and fundamental freedoms6 that form the central proposition of the right to development provides a fresh and innovative interpretation of development. Development as Freedom (Oxford. Whereas for some people development is synonymous with economic growth.. As Chairman of the Commission on Human Rights in 1977. Pioneers in Development (New York. ed. The reference to right to development was implicit in the articles of the Universal Declaration and the International Covenants. its coexistence with abominable conditions of poverty and deprivation. and Dudley Seers. he was instrumental in securing a formal recognition of the right to development as a human right through a resolution of the Commission. Vol. Meier. social and cultural development than a right of the individual.18/2. Working Paper. and the absence of analysis regarding the distribution of benefits is a relevant illustration of the problems of finding appropriate definitions of development. “in which all human rights and fundamental freedoms can be fully realized” has been elaborated in the literature on the right to development as objectives of development policies. in 1972. 1999. there has been a significant re-examination of the concept and value attached to adopting a rights-based approach to development. 3 . Coined by the Senegalese jurist. 1. Economic and Social Council E/CN. opportunities and freedoms that qualify as development. the right to development was interpreted as a collective right— the right of peoples to freely determine and pursue their economic. especially in reducing the levels of poverty 5 See Gerald M.

The Right to Development: A Primer (New Delhi. where the adoption of the Declaration on the Right to Development8 has provided a rallying point around which academics. Section I lays down the basic precepts of the right to development approach that differentiates it from other approaches to development. The present study is part of a larger research project undertaken by the François-Xavier Bagnoud Center for Health and Human Rights of the Harvard School of Public Health. Health and Development In India: Moving Towards Right to Health Care (2003) and Ravi Srivastava. Right to Food in India (2003). policies. thus this report focuses on the meaningful applications of the right to development in the realisation of basic needs and rights in India. December 4. Section III reviews the possibilities and implications of adopting the rights approach in fulfilling the basic needs related to food. especially its effects on the lives of the poor in the developing world. policy-makers and civil society may formulate concrete proposals identifying the main parameters of the right. The Centre for Development and Human Rights (New Delhi) has attempted to document the prospects and challenges confronting the implementation of the right to development. 4 . 2004) and the three background reports by S. the main discussion has been in the United Nations forum. 9 See Centre for Development and Human Rights.9 The report has five main sections. Mahendra Dev. health and education. The Right to Education in India (2003) prepared as a part of the above project on the Implementation of the Right to Development in India. Section II presents an historical overview of the process of development in India— encompassing a review of the goals. 1986.and deprivation prevalent across large areas of the globe. Ravi Duggal. approaches and structures influencing the formulation and implementation of development programmes. At the policy level. The current resurgence of interest in the right to development amongst policy makers and academia comes at a time when concerns are being expressed about the contradictions and biases of the process of globalisation. The report is based on preliminary research undertaken by the Centre concerning the application of a rights-based framework in the areas of food. health and education in 8 UN General Assembly Resolution 41/128.

Steiner and Philip Alston. how does the claim to a “right to development” actually help individuals? To whom does the right belong and who are the duty bearers? What is the scope of the right. 2001). For example.development. Morals (Oxford. Section V. 473-509. J. Donnelly. 10 Whether a right is basic or not is determined fundamentally. Politics. or the range of specific cases or instances to which the right applies? While the actual content and meaning of the right may still not be in a final form. ed.S. Needs related to food..11 For example. 2003). 1980). presents the conclusions and main findings of the research. motivated by love or pity. Law. “In Search of the unicorn: The Jurisprudence and Politics of the Right to Development”. New Jersey. The section below takes a look at the basic precepts of the right to development. health and education qualify as basic rights.10 Section IV outlines the role of international cooperation in realising the right to development. it is still possible to identify the linkages between development and rights and the extent to which the rights framework is interwoven with the realisation of development. See Henry Shue. California Western International Law Journal (1985) pp. and U. by the relationship that it has vis-à-vis all other rights. before undertaking a larger discussion on the relevance of the right to the Indian context. Basic needs interpreted in the rights language are represented as justifiable claims and “not mere gifts or favour. 5 . A right is genuinely basic when the enjoyment of all other rights is dependent on the realisation of this basic right. Franciscans International. The last section. 1996). the importance of assimilating rights with development cannot be discounted. People’s Rights (Oxford. The interpretation of development in human rights language undoubtedly raises certain questions. while a country may not consciously follow the right to development model. Affluence. Henry J. The Right to Development: Reflections on the First Four Reports of the Independent Expert on the Right to Development (Geneva. Basic Rights: Subsistence. 11 For further reference on the discussion on the above aspects of the right to development see Philip Alston. Foreign Policy (Princeton.

without a commensurate reduction in poverty or improvement in social indicators…with no improvement in the fulfilment of civil and political rights or of equity and social justice. regional or international disparity.The implementation of the right to development should be seen as an overall plan or programme of development where some or most of the rights are realized while no other rights are violated.1. rather than viewing them as discrete components.g. The interdependence can be understood in terms of time.13 12 The above interpretation of the right to development as a process of development in which all human rights and fundamental freedoms are realised. free market neo-liberal. 17 August 2000.” Report of the Independent Expert on the Right to Development A/55/306. human development. These include: • The right to development is a right to a process. 17 August 2000.1: The Essential Elements of the Right to Development Approach The inclusion of certain distinct elements differentiates the right to development thesis from other mainstream theories on development (e. 12 • The right to development requires the realisation of all rights in an integrated manner. not just outcomes.” Report of the Independent Expert on the Right to Development. General Assembly. forms the crucial vantage point that distinguishes the right to development from other mainstream theories of development. “A process implies an interdependence of different elements. participatory and community-driven models). 6 . centralised planning. economic growth. accountability and democratic participation. fluctuating employment with little social security. based on the five principles of rights-based approach— equity. together with a concentration of wealth and economic power. basic needs. as objects of claim as a human right…. A/55/306. as a related sequence of what happens today and what happens tomorrow…” The right to development in other words is the right to a process “that expands the capabilities or freedom of individuals to improve their well being and to realize what they value. Trade-offs among rights or between rights and economic growth that lead to the diminution of the enjoyment of any right are inconsistent with the right to development. transparency. non-discrimination. These processes of development would not be regarded as part of the process of development protected by the 1986 Declaration. 13 “There may be many different ways that a country can develop— a sharp increase in GDP or rapid industrialization or export-led growth— which may result in growing inequalities.

18/2. they stand to be distinct from outcomes. growth of resources must be realized in the manner in which all human rights are to be realized…ensuring in particular equity or the reduction of disparities. technology and institutions. 2 January 2001. reflecting upon what ought to be. 7 . Economic and Social Council. social deprivation and tyranny. it is instrumental in that it allows for the fulfilment of other development objectives and human rights. In such a framework both ends and means are accorded equal importance. Expressed either in quantitative or qualitative terms or a mix of both.. In this respect.” Third Report of the Independent Expert on the Right to Development.4/2001/WG. The process refers to the crucial aspects of social. education etc. Commission on Human Rights. economic and political life that determines the possibilities of change and transformation. the process reflects the means by which such goals are actually achieved. E/CN. the right to development draws attention to the crucial aspects of the ends and means of development. Unlike the preoccupation of most theories of development with achievements of certain targeted goals without any considerations for the means or the process through which these ends are achieved. For policy makers. Whereas ends focus on goals or final outcomes. The right to development makes it mandatory for both outcomes and the process through which such outcomes are achieved to be consistent with human rights standards. However. goals lay the basis for programmes or policies.14 The identification of development with the fulfillment of rights and freedoms “both at a particular time and over a period of time” or the “phased realisation of rights” distinguishes the right to development from other existing approaches to development. Encompassing a broader canvas of development that includes freedom from poverty.• There exists a strong connection between the realisation of all the rights taken together in the right to development and the need for economic growth in relaxing the constraints of resources. goals and objectives invariably form an important basis for selection and design of policies. to be recognised as an element of the human right to development. the growth dimension of the right to development is both an objective and a means. It is an objective because it results in higher per capita consumption and higher living standards. the association of development with the process and not just the outcomes gives 14 “Like the rights to health.

The Right to Development: Reflections on the First Four Reports of the Independent Expert on the Right to Development (Geneva. or follows a discriminatory. However. Option one. Rather. has been criticised by some scholars on the grounds that the process is of purely instrumental value. A process of development that does not follow the principles of rights-based development (equity. While consensus may prevail on the goals. if the State fails to create demand for education among minority groups. (ii) creating a demand for education amongst parents and children. as its goals for development. non-discrimination. and it would be a mistake to conceptualise it also as an end of development. See Siddiq Osmani in his article.15 For example. in deciding upon the choice of policies. the consistency of human rights with both outcomes and process is given primary importance. In all cases. For example. there is a possibility of disagreement over the process of realising the goals. among the many alternative processes available for implementing compulsory education. 8 . given the existence of several alternative processes.the right to development a distinct identity. then option two likewise does not 15 The right to development. especially the interpretation provided by the Independent Expert of the right to development as a right to a process of rights-based development. even if it manages to attain certain rights and freedoms. a country may choose to prioritise certain outcomes. policy decisions must be evaluated in terms of each of the tenets of a rights-based development approach. directly contradicts the accepted norms of democratic decision-making. The choice of options in the case of the right to development is not determined simply by utilitarian calculations of the number of persons benefited. or (iii) diverting money from other development needs in order to construct schools where none exist. accountability and participation) violates the tenets of the right. transparency. there may be a situation in which the Government is faced with three main policy options: (i) coercing parents to send their children to school. 2003). and thus the essence of development. non-participatory process of policy making. “Some Thoughts on the Right to Development” in Franciscans International. for example. such as compulsory schooling for all children or a social security programme for the aged.

17 August 2000.”16 Even so. a developing country may choose to prioritise the fulfillment of the right to food or the right to basic health care while a relatively better-off country may choose to accelerate other areas of rights fulfillment. 9 . One set of rights is not considered superior over other rights. it is possible to prioritise the progressive realisation of rights. as the rate of fulfillment of some rights may be accelerated more than others depending upon resource constraints and social preferences. the right to development consciously links the realisation of each right with the performance of other rights. For instance. such as a supplemental nutrition program for pregnant women and children. The right to development framework does not sponsor a trade-off approach to development outcomes. The achievement of one right at the expense of another also fails to be a viable policy choice. The integrated and holistic approach that takes into account the rights and freedoms of citizens in determining the processes as well as outcomes of development distinguishes the right to development from other existing approaches to development. while the construction of new schools does improve upon the accessibility and availability of education. rather. as “all human rights are regarded as inviolable and none of them is considered superior or more basic than another. individual communities and societies would choose their own programmes of development in accordance with the given state of affairs. at the micro level the cost of school construction could result in the corresponding reduction in spending on the realisation of another right. it explicitly presses for a more comprehensive treatment of 16 Report of the Independent Expert on the Right to Development A/55/306. In the case of option three.constitute a suitable. conceptualising a framework of progressive and integrated realisation of all rights. Emphasising the interdependent nature of rights. rights-based policy choice. In doing so.

social and cultural rights are very similar to its role as protector of civil and political rights. the State also has the positive obligation to facilitate and aid the process of rights realisation by undertaking affirmative action that guarantees suitable opportunities and means for citizens to realise their needs. While this may be a plausible situation. p.rights than has traditionally been the case in highlighting the inadequacies of the existing processes of development. those minimum obligations. 26 April 2001. in order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources. 20. States have the obligation to respect.”17 While the full realisation of 17 United Nations. as a matter of priority. However. 10 . especially in the developing world. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. “it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy. The identification of development as a human right makes it obligatory for the State. fulfilling and protecting the right to development of citizens. HRI/GEN/1/Rev. The protective function of the State is the most important as well as manageable aspect of the State’s obligations. to undertake specific responsibilities towards respecting. as the State’s role in the protection of economic.5. The lack of sufficient resources has often been quoted by States. as a reason for the inability to provide for certain basic rights for all. which includes a positive affirmation on the part of the State not to undertake any action that would cause obstruction or hindrance in the process of right’s fulfillment. Attention to process also raises other related concerns. by virtue of being the primary duty-holder. Then States also have the obligation to protect and safeguard the rights and freedoms of individuals from negative actions arising on account of unethical practices.

Russia and China (Cambridge. in order to address conflicts and differing interests among groups or individuals while respecting and protecting fundamental rights. in the process of ensuring a fair and equitable solution to the problems of development. While the obligations to respect and protect may appear to be less demanding than the right to fulfill. which necessarily involves a certain degree of affirmative action on the part of States.18 The obligation to take steps towards the realisation of basic rights “by all appropriate means” by States includes a commitment to all three levels of obligations— respect protect and fulfill. the State must mediate the crucial interests or various stakeholders. “deliberate. of essential primary health care. 1979). States and Social Revolutions: A Comparative Analysis of France.” is prima facie considered as having failed in the discharge of its primary obligations. of basic shelter and housing. so that affirmative action becomes a social necessity.19 In India. 1980) and Theda Skocpol. p 20. 11 . representatives of the State must still struggle to make themselves relatively autonomous of the dominant structures of power within a country. It is significant that a State in which a significant number of individuals are deprived of “essential foodstuffs. In addressing concerns such as equity. the selection of a set of policies from amongst many is not as “technical” as is made out to be: the choice is a political one involving considerations and calculations of policies that may not be acceptable to both powerful and dispossessed segments or classes of society. or of the most basic forms of education. 19 The concept of “relative autonomy” referring to the ability of the capitalist State to act and formulate policies independent of and even against interests of dominant groups and classes has been borrowed from the work of scholars such as Nicos Poulantzas State. Therefore. concrete and targeted” steps towards that goal must be taken by the State to demonstrate its seriousness in according importance to the realisation of basic rights. contradictions in the development process necessarily create divisions between groups and communities.relevant rights may be achieved progressively. 18 Ibid. Power and Socialism (New York..

K. the co-existence of a relatively small organised sector with a massively huge and heterogeneous unorganised sector. disparate levels of welfare. the country produces highly qualified professionals. Sumanta Banerjee. 1974). 1991) for an elaboration of the interface between feudalism and capitalism in modern Indian society.2: Right to Development in the Context of the Indian Development Experience As a country. Studies in Agrarian Social Structure (Delhi. traces of feudal life still exist in certain parts of the country that pose a challenge to the democratic norms of modern society. For example. The history of the last fifty-plus years of development planning in India has been characterised precisely by attempts at resolving and reducing contradictions in development. On the one hand. In terms of human development ranking. either through State-encouraged initiatives or direct public action. India ranks at par with countries having lower per capita incomes (rank 127)22. India’s social indicators remain weak by most measures of human development. 1980). Predominantly capitalist in orientation. while India ranks high in terms of global competitiveness (rank 57)21. Desperately low achievements in attaining equity of opportunities to basic goods and services.20 Bonded wage labour as opposed to free employment. approximately 20 percent 20 See Andre Beteille. the Indian experience with development provides an interesting test case. Balagopal. Navdita Gandhi and Nandita Shah. The Issues at Stake: Theory and Practice in the Contemporary Women’s Movement In India (New Delhi. such as schools and hospitals. 1988). 2004). 2003). 22 Human Development Report 2003 (New York. are a few reflections of the complexities involved. massive overpopulation. make the application of the rights-based approach to development imperative in India. In the Wake of Naxalbari (Calcutta.1. Despite impressive gains in economic investment and output. 12 . yet on the other. 21 Global Competitiveness Report 2003-2004 (New York. Probings in the Political Economy of Agrarian Classes and Conflicts (Hyderabad. small-scale labour intensive manufacturing units vis-a vis larger and fully automated units of production. extensive poverty and high environmental degradation place India in a peculiar situation.

1. self-reliant programme of development. India To-day (Calcutta.3 million. From 1757.9 million and pensions £1. along with gradual impoverishment under colonialism. silk. tea. 2nd edn.).4 million. India started exporting commodities such as raw cotton. oilseeds.23 The issue at hand is not just about unmet needs and aspirations. provided the immediate imperative for an indigenously designed. Amid other developing countries who gained independence around the same period. India remained a prized possession of the British. but a larger question of the State’s responsibilities and obligations towards maximising the redress of socio economic imbalances and inequities. hides and skins. thinly veiled the realities of the Raj. spices and handicrafts formed the main exports from India. 25 Sumit Sarkar.of the world’s out-of-school children belong to India. denying them economic. 1970. 13 .euphemistically referred to as the “Home Charges” came to £17. Palme Dutt. Sumit Sarkar. 1983 reprint). the year the East India Company established its control over Bengal till the very last years of colonial rule. The Economic History of India: In the Victorian Age 1837-1900 (Delhi. Historically. 1963) and R. the formal end of two hundred years of colonial rule in August 1947 presented a significant opportunity for social and economic transformation. stores purchase £1. but with the decline of traditional exports in the face of competition from Manchester.3 million in 1901-02 of which interest on railways made up for £6. India served as an important post for markets and raw materials which arose as a result of the Industrial Revolution in Britain. Modern India 1885-1947 (Madras. army expenses £4. p. social and cultural rights. occasionally combined with talk of trusteeship and training towards selfgovernment”. see Romesh Dutt. the interest on India Debt £3 million. the relatively better position of India gave rise to genuine 23 24 As a colony. For a more exhaustive commentary of the economic consequences of colonial rule. while assaulting the principles of political equality and social justice enshrined in the Preamble of the Indian Constitution.This “drain of wealth” propounded by early nationalist leaders such as Dadabhai Naoroji to highlight the exploitative relationship existing between Britain and India represented a potential surplus that if invested properly within the country might have helped raise India’s income considerably. jute. The poor suffer from extreme lack of access to a range of basic services. Administrative charges levelled by the British Government .3 million. 25-27. pp. Initially cotton. 25 The unsatisfactory diffusion and denial of the accrued benefits to a large majority of the native Indian population.24 An ideology of “paternalistic benevolence.

26 Instead of the Gandhian model of community-based decentralised development. p. 1994. a centralised model of planned development was adopted. It is interesting to note that while the very political strategy of building up a mass movement against colonial rule had required the nationalists to espouse Gandhi’s idea of machinery. The strategy “did not draw its principal inspiration from a reasoned analysis and assessment of the political economy of the country. 275. India benefited from a rich stock of natural resources. social structure and the immediate needs of its people. in the hope of rapid industrial and economic transformation. it drew upon the very model of the modern industrial economy that the freedom struggle had criticised severely in its drain of wealth theory.1995). The Politics of India Since Independence (Delhi.). commercialisation and centralised state power as the curses of modern civilisation imposed by European colonialism.expectations that despite the grinding poverty. very much influenced by the theories of socialist development. an industrial base which by the standards of other colonies was fairly broad and advanced. 14 . 201. The initiation of an aggressive policy of industrialisation minus 26 Partha Chatterjee. 27 Paul R. the country would manage to embark on a successful programme of national reconstruction and development. Gandhi’s vision of national self-sufficiency through a vibrant and largely self-reliant village economy was considered to be too impractical and unrealistic at the eve of Independence. Indian edn. Brass. p. 2nd edn. The central core of the development policy was a move towards a capital intensive. a bureaucratic and administrative apparatus and lastly a political leadership committed to a programme of modernisation. its resources. public sector led programme of heavy industrialisation. The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi.”27 Instead.

inadvertently leading to the exclusion of the community from the realm of policy making. Indian edn.commensurate attention on other equally more important goals of development therefore left much to be desired. 28 The Planning Commission in Delhi was designated as the nodal body responsible for formulating development plans between the Centre and the States. lacking the social strength to launch a full scale assault on the old dominant classes.29 The call for decentralised planning that had been a rallying point during the freedom movement was shelved. Politics in India (Delhi. there was relatively little uniformity maintained between States in terms of area or population size.Gunnar Myrdal. Gunnar Myrdal on the other hand uses the “soft state” analogy to describe very much the same phenomena. agrarian reform is avoided. See Partha Chatterjee. While the administrative structure was kept the same for all States. ed. 1992 reprint).1995). Sudipto Kaviraj. for bigger states such as Madhya Pradesh. even a district formed too big an administrative unit. Even those who supported some sort of devolution of power preferred an arrangement within the larger framework of the modern nation state. opt for a path in which the demands of a new society are satisfied in small doses. 28 The reluctance of the political leadership to undertake structural reforms has been theorised in the works of many scholars such as Partha Chaterjee. legally in a reformist manner— in such a way that the political and economic position of the old feudal classes is not destroyed. 29 Debates of the Constituent Assembly reveal that there existed a wide spectrum of views on Panchayati Raj. Asian Drama : An Inquiry into the Poverty of Nations (New Delhi. The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi. there was relatively very little delegation of decision-making powers at the level of local Panchayat bodies. At the regional level. For the smaller states while the three-tiered structure did not create problems. Sudipto Kaviraj. which in turn were divided into blocks. While the village was accepted as the basic unit of the organisational framework. and the popular masses are prevented from going through the political experience of a fundamental social transformation. Gunnar Myrdal and others.. Both Chatterjee and Kaviraj have borrowed Gramsci’s concept of passive revolution to describe the context in which the new claimants of power. Panchayti Raj as the foundation of decentralised governance was thus rejected and included instead as Article 40 of the Directive Principles of State Policy. the State was recognised as the fundamental planning unit. A cluster of villages made up a particular block. 1999). Each State unit was divided into several districts. 15 . According to him there is unwillingness among the rulers to impose obligations on the governed and a corresponding unwillingness on their part to obey rules laid down by democratic procedures. ranging from the Gandhian model of a decentralised village republic to a complete rejection of the village as a “sink of localism and a den of ignorance” by Ambedkar.

31 In Devarajiah v. For example.While a popularly elected representative form of government provided both the legitimacy and the mandate to the Executive to determine the vision and course of development. while in 1955 the Government passed the Untouchability (Offences) Act. 1987). While the Act provided protection against social disabilities imposed on certain classes of persons by reason of their birth in certain castes. 30 For a review of these two programmes see Atul Kohli. The State and Poverty in India: The Politics of Reform (Cambridge. which made its practice in any form a punishable offence.30 While it is understandable that situation prevalent at the time of Independence was a complex one. there was little that was done in concrete terms to tackle the issue of caste-based discrimination.”31 In other words. A strong consensus existed among the political leadership and the immensely powerful bureaucracy concerning the central importance of industrialisation in laying the groundwork for development. The Westminster model of parliamentary democracy in fact replicated the colonial practice of giving the Executive de facto powers to decide. the failure of the Indian State to undertake a proactive programme of social reconstruction and development remains an anomaly. plan and execute all policies related to national and regional development. 16 . the Executive in India also retained a degree of autonomy from the civil society in determining the goals and objectives of development. “it did not cover social boycott based on conduct. Padmanna (1961). these concerns were considered to be of secondary importance to the industrialisation that continued to be closely identified with modernisation. as proclaiming the end of the inhuman practice of treating certain fellow human beings as dirty and untouchable by reason of their birth in certain castes. the Supreme Court of India interpreted the objective of Article 17 of the Indian Constitution relating to the abolition of untouchability. there was no affirmative action to regulate customary practices that prohibited persons belonging to lower castes from using the same wells. While the Government formally announced the abolition of zamindari and placed ceilings on land ownerships. on the issue of caste.

Srinivas. n. Dailt Visions: The Anti-Caste Movement and the Construction of an Indian Identity (New Delhi. the major beneficiaries were upper caste elites. however. Although the first phase of the programme focussed on the improvement of social amenities such as schools.262-273.30. Social Change in Modern India (Berkeley. The State and Poverty in India: The Politics of Reform. nearly fifty years later. for a review of caste-based discrimination in India. such as flaying and scavenging. roads. Dominance and Politics in a Cohesive Society” in Sudipto Kaviraj. 28. 1995). Constitutional provisions provided legal guarantee of greater equality. n. 33 Atul Kohli. pp. n. ed. pp. M.34 The Community Development Programme. The majority of the lower caste either worked as agricultural workers or continued to be engaged in traditional occupations. considerable inequalities persisted.attending the same temples or marrying persons from other castes. serves as a useful illustration of the inherent limitations of a process of development biased against persons coming from lower castes. Ghanshyam Shah. 2. “Karnataka: Caste. wells. 1966). Asian Drama: An Inquiry into the Poverty of Nations.32 Therefore. For example. instituted in 1952. 35 Gunnar Myrdal.33 Studies undertaken have in fact shown that the pattern and process of development in fact strengthened the primordial system of caste-based loyalties. Politics in India. 34 See James Manor. while economic growth and democratic arrangements buttressed the legitimacy of political authorities by providing economic rewards to the upper class urban professionals and the rural landed elite.118-136.28. in practice. lower caste workers who constituted the majority of the poor continued to be both physically and socially deprived of the benefits of such investments. scheduled castes 32 Gail Omvedt.. the majority of workers in both agricultural and the industrial sectors received relatively little benefits from this growth. 17 . health centres.N. p. Class. etc..35 Experiences in development planning in India over the last few decades have confirmed the persistence of similar contradictions. 8. n.

the roots of gender discrimination lie deeply entrenched in the social and cultural fabric of communities. While for India as whole the under-five mortality is roughly 100. Tenth Five Year Plan. The relative poverty in which they are forced to live makes them vulnerable to increased morbidity and mortality that has a debilitating effect on their capabilities. 36 Based on the Census for the last four decades. 18 . 2002-07. while the Constitution specifically provides for equality between sexes. Intra-State and intra-commmunity differences in important indicators such as infant mortality— the infant mortality rate is over 80 among scheduled caste or tribe households. Vol. for scheduled caste and scheduled tribe families the rate is over 120 deaths per 1000 live births. but extends to criterion of sex and disabilities. the highest proportion of underweight children continues to be from scheduled caste and tribe families. For example. Planning Commission. Systemic discrimination in India is not just confined to grounds of caste. 2. For example. race and class.and tribes continue to be discriminated against and deprived of the right to participate in the formulation and making of development policies affecting them. Elimination of the girl foetus through illegally executed pre-natal sex determination and female infanticide is responsible for the declining sex 36 A similarly broad difference exists in the under-five mortality rates too. literacy rates of scheduled tribes and scheduled castes vis-a-vis the rest of the population illustrates the widening gap and the relatively slow progress that has been made in creating equal opportunity for all people. compared to the national average of 70 deaths per 1000 live births— signify the need for special attention to be focussed on the development of socially and economically disadvantaged communities. Although their exclusion from the policy process as actors and beneficiaries has significantly reduced over the years. as a community they continue to lag behind the rest of the population in terms of overall development.

etc. employment. Disparities at multiple levels that have a direct bearing on all facets of development (personal. The reconceptualisation of the role of economic growth in development represents such a move. places such persons at a relative disadvantage vis-a-vis others living in the same society. The right to development intrinsically supports a process of growth that aids the positive 37 As per official estimates. cultural and economic) make it impending to consciously articulate and integrate development with the rights discourse. political. the sex ratio in the age group 0-6 years has fallen from 945 in 1991 to 927 in 2001.. Source: Census 2001. 19 . The legal guarantees related to equality. the rights framework shifts the focus of policy making from the realm of outcomes to a deeper concern with the qualitative aspects of life. Development in such a framework is not judged solely on the basis of achievement of certain quantitative targets but rather by the positive improvement or contribution that the intervention makes to the enhancement of human capabilities. non-discrimination.37 and is indicative of how technological advances can be subverted to further discrimination and gender biases prevalent in modern Indian society. The above examples seek to reinforce the need for institutionalising a framework of development that seeks to make the individual the central focus of attention. The complexities and the paradoxes prevalent in India support the association that the right to development makes between development and public action. schooling. A similar situation prevails in case of physically challenged persons. Translated as a goal of development policy. The lack of opportunities towards the fulfilment of basic needs such as freedom of movement. The right to development in its form and spirit supports such a representation. social. freedom of movement and association that continue to be violated in different contexts across different segments of the population supports a revision of conventional legal principles.ratio between males and females. for India as a whole.

Per capita income in the richest State (Maharashtra) is approximately nine times that of Assam. it is iniquitous distribution at the local intra-State level that is of greater concern. then such a process of growth is incompatible and fundamentally contrary to the framework provided in the right to development. Rather it is the process of growth— its consistency with the rights framework— its content and character that are considered more important.2 brings out the intricacies existing between growth and development in India. resources and opportunities call for concern. For example.2. 20 . the poorest State in the country. The case of Tamil Nadu provides a relevant illustration of the above point.1 and 1. if the distribution of growth is skewed disproportionately in favour of a few groups. the widening gaps between regions and communities in terms of income.realisation of rights and freedoms. from the rights perspective.1 and 1. Tamil Nadu that ranks first in terms of growth in per capita 38 The categorisation of rich and poor States is limited to the selected 15 States in Tables 1. classes or regions. The achievement of growth per se is not taken to be the representative indicator of development. A comparative analysis of the trends in growth in Tables 1. While progressive growth has been a regular feature of the Indian economy indicating a steady improvement in the growth potential of the country.38 While disparities between States certainly form an important area of concern at the national level such as the relative backwardness of the North-Eastern States vis-àvis the rest of the country.

176 0.325 0.330 0. National Human Development Report 2001.298 0.321 Kerala 0.326 0.241 0. where 0 and 1 represent two extremes of perfect (0) equality and extreme (1) inequality.276 0.320 Madhya Pradesh 0.236 0.241 0.300 0.374 0.242 0.27 indicates that internal inequalities in terms of per capita 39 The Gini coefficient is an indicator of the level of inequalities existing in a given society.285 0.245 0.286 0.290 Rajasthan 0.337 0. The urban Gini39 of 0.340 0.301 0.238 0.341 Source: Planning Commission.279 0.330 0.288 Haryana 0.319 0.267 0.319 0.280 0.270 0.340 0.301 0.350 0.281 Tamil Nadu 0.290 0.327 0.290 0.208 0.345 Orissa 0.309 0.209 0. p.304 0.264 0.311 Bihar 0.285 Karnataka 0.292 Punjab 0.282 0.335 0.295 0.340 0. 148.1: Gini Coefficient for Per Capita Consumption Expenditure Across State 1983 1993-94 1999-00 State Rural Urban Rural Urban Rural Urban Andhra Pradesh 0.278 0.240 0.324 0.310 Assam 0.328 India 0.238 0.327 West Bengal 0.306 0.343 0.258 0.257 0.290 0.260 0.172 0. 21 .233 0.344 0.279 0.39 for Tamil Nadu vis-a-vis the rural Gini of 0.256 0.278 0.398 Uttar Pradesh 0.318 Gujarat 0.285 0.276 0.303 0.Table1.201 0.258 0.334 0.256 0.327 0.272 0.192 0.243 0.294 0.308 0.224 0.321 0.304 0.250 0.312 Maharashtra 0.269 0. income however also ranks first in terms of inequalities.285 0.348 0.221 0.313 0.296 0.

which have long had lower rates of growth.19. Assam which ranks lowest in terms of income stands out as the State having the lowest rural Gini (0. have fallen in their human development rankings.41 is of greater concern. While persistence of interState disparities is a cause for concern.14. has been better positioned to overcome challenges than the states of Orissa or Bihar. and p. Malkangiri.7 percent of the 40 The states of North East India it may be noted have lower rural Gini coefficient figures than those recorded for the rest of India. which was for long identified as a BIMARU (backward) State. 148. While nearly all State Governments encounter problems in fiscal deficit management. Kerala and West Bengal illustrate the contribution that social sector policies and land reform programmes can have in reducing inequities associated with the development process. 22 .25 in 1999-2000. Nawrangpur. Kalahandi and Nuapada.20) amongst the rest of the States selected for consideration. The KBK region in Orissa accounts for approximately 30 percent of India’s total land area. Bolangir. such as Karnataka. Manipur. In contrast to Tamil Nadu. See Planning Commission. Tamil Nadu.40 The relationship between growth and development is dependent on a number of exogenous and endogenous factors. While the rural Gini for the India as a whole was 0.consumption are higher in urban than rural Tamil Nadu. as in the case of the Koraput-Bolangir-Kalahandi (KBK) region. National Human Development Report 2001. some states in India are worse off than others. 0. underdevelopment over a period of time. Sonepur. politics and the economy. 41 The eight districts that make up the region are: Koraput. 0. while other relatively faster growing states. which carries a record of continuous improvement in growth performance. and 19. for Meghalaya.18. Rayagada. has been successful improving human. Rajasthan. at the local level the potential for growth is invariably determined by the composition and structure of society. Gujarat and Andhra Pradesh.15 respectively. Tripura and Nagaland the Gini was 0. 0. While centre-state relationships play an important role in the determination and allocation of resources.

27 2 48 2 48 2 Haryana 5 5 13 3 3.28 9 75 11 75 2 Rajasthan 11 9 10 11 5. Statistical Abstract 1997 and 2002. Provisional Population Totals Paper 1 of 2001.9 9 64.7 1 62. NSDP figures were taken from RBI.69 - 59.8 1 90.5 3 57.1 5 38.11 12 66 8 65 7 Assam 10 14 15 13 0. 2002. India.97 4 62 7 62 6 Karnataka 7 7 8 6 6. Census of India 2001. Economic Survey 2002-03.1 11 49.21 - 72 - 68 - Sources: Handbook of the statistics on Indian Economy.1 12 61. Government of India 2001.11 10 97 15 87 11 Uttar Pradesh 14 13 2 12 3.9 2 77. 23 .9 5 55. *The figure for India is calculated from the per capita net national product.7 13 57.5 4 61. Note: States are sorted according to HDI rank of 1991.7 3 73.5 5 69.47 3 54 5 51 3 Maharashtra 4 4 1 1 3.5 14 47.8 13 52.8 8 68.03 13 86 13 79 9 Orissa 12 11 14 15 2. and Per capita NSDP are obtained by dividing NSDP with population totals computed from Economic Survey. RBI. National Human Development Report 2001. Series 1.61 11 96 14 95 12 Madhya Pradesh 13 12 7 7 2.9 12 37.6 2 56 7 67.GOI.6 10 44.6 8 64.36 14 85 12 83 10 Bihar 15 15 9 14 1.7 6 69.5 15 61.04 8 53 4 57 5 West Bengal 8 8 4 9 6. Planning Commission.6 10 58. Economic Survey2002-03. CSO.6 6 89.1 10 63.2 7 44.Table 1.3 4 69.7 11 64.15* - 44.5 9 40.59 7 68 9 67 8 Gujarat 6 6 6 4 5.95 5 52 3 52 4 Tamil Nadu 3 3 3 5 6.53 15 72 10 62 6 India - - - - 5.2: Growth and Human Development Ranks Ranks HDI Rank based on based on state wise per capita NSDP NSDP (1999-00 (1999-00 at at constant constant 1991 2001 prices) prices) 1 1 12 8 States Kerala Per capita NSDP 1993-94 to 1999-00 Literacy Rate Infant Mortality Rate Average Annual Growth Rate Rank 1991 Rank 2001 Rank 1996 Rank 2000 Rank 4.22 6 55 6 51 3 Andhra Pradesh 9 10 5 10 4.92 1 13 1 14 1 Punjab 2 2 11 2 2.

1 percent of the population living here subsists below the poverty line. sex and birth. social and cultural rights on the other hand was more implicit. so as to create pressures for better policy administration. such as equality before law. However. rights against discrimination on grounds of religion.42 Despite the investment of various Government programmes. The protection of economic. the KBK region continues to be plagued by poor social and economic development. Articles 36- 42 Orissa Development Report 2001. while rights constituted an integral theme of the nationalist movement and were accorded special importance in the Constitution of India. Placed in a separate section as Directive Principles of State Policy (Part IV. http://planningcommission. This continued persistence of poverty points to the need for a wider range of public action. A separate section (Part III.nic. India it may be noted was one of the few countries that constitutionally accorded equal civil and political rights to both men and women at a time when certain countries such as Switzerland continued to deny to its women the right to franchise.in/plans/stateplan/stplsf.total population. caste. These were essentially rights of a civil and political nature delineating limitations or restrictions on the actions of the State. nearly 87. 2: The Institutional Framework Supporting a Human Rights Approach in India Historically. given the fact that at the social level there were certain bottlenecks that impinged on the enjoyment of certain freedoms.htm 24 . Articles12-35) was devoted to rights that were considered to be fundamental in the new Constitution. race. the conceptualisation of development in the post-Independence period was bereft of the rights framework. affirmative action constituted an important part of the responsibility that the State had towards the protection and promotion of civil and political liberties. the right to freedom of speech and association. However.

29th April. 1947. 25 . the amendment was not carried out. as it did not find favour with the majority in the Constituent Assembly. social. “conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities”. “the ownership and control of the material resources of the community …to sub serve the common good. sickness and disablement” etc. liberty of thought.” “right to work. the State’s responsibilities to the protection of social. economic and cultural rights were relatively less explicit.”44 there were demands from certain representatives to make Directive Principles of State Policy justiciable. 4.” 44 The Constitutional Advisor to the President of the Constituent Assembly.51). expression. However. faith and worship. Debates: Constituent Assembly of India. B. equality of status and of opportunity and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. N. economic and political.45 While the constraint on resources was invariably an important consideration it is debatable whether financial constraints provided the sole justification for the State to refrain from assuming direct and binding obligations in development.43 A commitment to “equal pay for equal work for both men and women”. Rao in fact suggested an amendment that would make Directive Principles enforceable in a court of law. to education and to public assistance in case of unemployment. 45 See n. were some of the important principles enumerated in this section. While legally the Constitution made the State explicitly responsible for the protection and promotion of civil and political rights. The Kerala experience with development clearly counters such reasoning. At the time of Independence while non-justiciability of Directive Principles was justified on the grounds that “a State just awakened from freedom with its many preoccupations might be crushed under the burden. old age. Following independence in 1947. while Kerala 43 The Preamble to the Indian Constitution calls upon the State to secure the following ideals for all its citizens: “justice. belief. this set of rights were included to serve as policy guidelines for successive governments to build upon the ideal of a democratic welfare state as set out in the Preamble.

Vol. 2002). 29-48. “Examining the Justiciability of Economic. there is relatively little consensus over whether such a responsibility be made legal and justiciable. pp. for free and compulsory education for all children until they complete the age of fourteen years. as opposed to merely aspirational rights enters the debate. “From Class struggle to Class Compromise: Redistribution and Growth in a South Indian State”.” 26 . creating positive obligations for the State to undertake certain policy steps in order to fulfill and provide for the social and economic needs of individuals. 31 (5). this was not the case for the rest of India. June 1995.46 Given the arbitrary nature of obligations towards development. While there is no disagreement over the fact that the State has an obligation to improve the standard of living of all its citizens.” Article 45 has recently been rephrased through an Act of the Indian Parliament (Eighty-sixth Amendment. determine. social and Cultural Rights”. The Journal of Development Studies. by law. the issue of justiciability certainly merits attention. 6 (4).47 The positive value of making the category of economic and social rights justiciable in a democracy may be illustrated by taking up the case of something as basic as the universalisation of primary education across the country.continued with the legacy of allotting a substantial share of public resources to social investments. Mapulanga-Hulston. and the article now reads as “the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. The original text of Article 45 of the Indian Constitution dealing with primary education had laid out that the State “shall endeavour to provide. Vol. within a period of ten years from the commencement of this Constitution. 47 Jackbeth K. The International Journal of Human Rights. 48 “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may. This is where the protection of legally enforceable social and economic rights.” The above amendment read along with Article 21A48 that appears in the 46 Patrick Hellar.

the State is under an obligation to ensure free and compulsory education to all children aged six to fourteen years. In other words. The principle of equity. while the Indian State may respect and protect the right to education for all children by including it as a Fundamental Right. In the Indian context. equality and fraternity. Constitutionally now. while the constitutional recognition of the right to education. the above example also throws light on some of the inherent limitations of the justiciability thesis in making rights realisable. Rights in India derive their primary legitimacy from the assertion of fundamental principles of justice. as a justiciable right is undoubtedly a positive step forward. mentioned in the Preamble to the Indian Constitution. liberty. finds substantive elaboration in specific provisions that connote 27 . for example. The transformation of indirect responsibilities into a more direct obligation through a constitutional amendment holds significance for potentially supporting the gradual interpretation of development from a rights perspective in India. There can be a situation where people’s rights may have no protection despite being guaranteed in the Constitution. Legislation on rights constitutes only one part of this entire process. protect and fulfil. The right to education is a relevant citation of how the realisation of rights is connected to and dependent on a much larger process that involves both the State and the community to engage in a programme of affirmative action. the duty to fulfill necessarily entails affirmative action to ensure the full realisation of the right. However.section on Fundamental Rights is significant. Table 2. At this point it would be useful to examine the constitutional and legal framework supporting the institutionalisation of a system of rights-based governance in India. The State’s obligation for rights fulfilment extends to three basic spheres— the right to respect. yet justiciability per se does not automatically lead to a guarantee of realisation.1 displays the various provisions existing for the realisation of rights-based principles in India.

Scheduled Tribes & Women in Panchayats (243) Reservation of Seats for Scheduled Castes.Table 2. caste. Scheduled Tribes and women and children (15) Equality of Opportunity in matters of Public Employment (16) Right to Education for all children between 6 and 14 years of age (21) State to secure a social order for promotion of welfare of all people (38) Ownership and control of material resources of the community to be distributed as best to serve the common good. to education and to public assistance in certain cases (41) Living Wage for workers (43) Promotion of educational and economic interests of Scheduled Castes. Scheduled Tribes and other weaker sections (46) Reservation of seats for Scheduled Castes. sex or place (15) Abolition of Untouchability (17) Abolition of Titles (18) Equal pay for equal work for both men and women (39) Equal justice and free legal aid (39) Fundamental Rights Directive Principles Protection of life and Liberty : Fair procedure & fair trial (21) Protection against arrest and detention in certain cases (22) Foster respect for International law and treaty obligations in the dealings of organised people with one another (51) Fundamental Rights Directive Principles Other Right to Constitutional Remedies (32) Fundamental Rights Directive Principles Freedom of speech and expression (19) Non-discrimination Transparency Accountability Participation Separation of Judiciary from Executive (50) Appointment of Comptroller and Auditor General of India (148) Organisation of Village Panchayats (40) Participation of workers in management of industries (43) 28 . race.1: Legal Framework Supporting Rights in Governance Principles Constitution of India : Principles & Provisions Fundamental Rights Equity Directive Principles Other Special provisions for socially and educationally backward classes Scheduled Castes. 332) Equality before Law & Equal Protection of Laws (14) Fundamental Rights Directive Principles Prohibition of discrimination on grounds of religion. Scheduled Tribes in Union and State Legislative Assemblies (330. (39) Operation of the economic system does not result in concentration of wealth and means of production to the common detriment (39) Right to Work.

a positive commitment on the part of the Indian State to undertake affirmative action based on
the principles of distributive justice. While the Constitution explicitly calls for nondiscrimination amongst citizens on grounds of religion, race, caste, sex and place, it does,
however, allow for positive discrimination undertaken specifically for the welfare of underprivileged sections such as Scheduled Tribes, Scheduled Castes, socially and educationally
backward classes, women and children.
These underlying assumptions have provided the foundation for the assertion and
interpretation of “newer” rights in the Indian context. Rights of communities and individuals to
and in development constitute one such set of rights. A review of some important cases in the
next few pages illustrates the varied usage of the rights language pertaining to the civil and
democratic rights of citizens in the context of development.49 In Maneka Gandhi v. Union of
India (1978),50 the Supreme Court for example, interpreted the right to life (Article 21) as being
beyond mere physical existence, including within its ambit “the right to live with human
dignity.” The same was reiterated in Francis Coralie v. Union Territory of Delhi (1981)51 where
the right to life was interpreted to include all the “bare necessities of life such as adequate
nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse
forms…” The Supreme Court’s judgment in the case of People’s Union for Democratic Rights v.
Union of India (1982), the non-payment of minimum wages to workers was interpreted as
49

The term democratic rights refers to the struggle for the assertion of liberties that are guaranteed formally but are
not ensured in practice. The assurance of fair trial in the dispensation of justice, compensation for illegal detention
and death in custody, safeguard against physical and mental torture, provisions for legal aid etc., are some of the
important democratic rights issues espoused by the civil liberties and democratic rights movement in India.

50

The case involved the refusal by the Government to grant a passport to the petitioner, which thus restrained her
liberty to travel. In its judgement the Supreme Court pronounced that a citizen’s passport could not be impounded
for an indefinite period of time.

51

The Supreme Court in this case pronounced that any form of torture or cruel, inhuman or degrading treatment was
offensive to human dignity and constituted a violation of the right to life enshrined in Article 21 of the Constitution.

29

amounting to the denial of their right to live with basic human dignity.52 Other relevant citations
include rulings in Olga Tellis v. Bombay Municipal Corporation (1986),53 where the court drew
attention to the relevance of livelihood; Jolly George Verghese v. Bank of Cochin (1980),54
where imprisonment of a poor person for non-payment of debts was considered to be equivalent
to depriving the person of his or her personal liberty; and Neerja Choudhari v. State of M.P
(1984), which focused on the rehabilitation of freed bonded labourers. 55
It would at this stage be useful to take a closer look at the judicial and administrative
process as it works in India. Article 32 of the Indian Constitution, gives citizens the power to
directly appeal to the Supreme Court concerning the violation of rights. The Supreme Court of
India, as part of its juridical duties, has the power to issue directions or orders or writs in nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of
rights conferred. Orders passed by the Supreme Court are equivalent and binding on all
authorities. A Court Order generally contains two main parts: the declaratory and the mandatory.
The enforcement of orders thus depends on the specific type and nature of order. Declaratory
parts to be enforceable have to await the acceptance of the State government concerned. In

52

The case dealt with the denial of minimal wages to workers in Delhi. The Supreme Court observed that a
deprivation of rights and benefits guaranteed under various labour laws constituted a violation of Article 21, the
right to life.
53

The petition took up the case of the rights of the pavement dwellers to shelter in the city of Bombay. The Supreme
Court in this case extended the meaning of right to life in Article 21 to include a right to livelihood.

54

This case took up a review of the procedures that were to be followed in case of non-payment of debts. The Court
in its judgement ruled that the respect for human dignity and worth as enshrined in Article 21, placed an obligation
on the State not to incarcerate except through law that satisfies the ‘just, fair and reasonable’ test.
55

The petition related to the rights of bonded labour and the possibilities of their absorption into mainstream society,
after they have been freed.

30

Unnikrishnan J.P. v. State of Andhra Pradesh (1993),56 the Court declared the right to education
as a basic right linking it with the right to life in Article 21, but it was not accepted by the State
until nine years later, when the State responded by introducing the Ninety-third amendment
making education a fundamental right. Mandatory orders, on the other hand lay down a plan of
action as well as a time frame within which compliance with court orders is expected. The
Supreme Court’s orders in People’s Union for Civil Liberties v. Union of India case is a good
example of the above. In this case, the Court upheld “the duty of each State or Union Territory
to prevent deaths due to starvation or malnutrition,” by establishing specific guidelines to
operationalise the principles of transparency and accountability in the functioning of the villagelevel food for work programme. The Orders specifically provide for the appointment of
Commissioners who have the responsibility of providing periodical reports on the
implementation of the Court’s directives.
While progressive interpretation of Directive Principles by the Supreme Court has been
instrumental in clarifying the scope and content of rights, the fact that the judiciary among all
other institutions is the least accountable to public opinion, brings to fore the limitations of
articulating a discourse of rights based on judicial interpretations alone. Litigation in India has its
own limitations. Heavy monetary costs, time constraints, physical and social inaccessibility to
courts and the absence of legal help and advice are some of the factors that deter individuals
(especially the poor) from accessing courts of justice. While the institutionalised practice of
Public Interest Litigation (PIL) by the Supreme Court in late 1970s has actually made it possible
for individuals and organisations to approach the courts directly “in public interest” on behalf of

56

The case involved the petitioner challenging the State legislation that granted private medical and engineering
colleges the right to charge additional fees from students seeking admission. The Supreme Court in this case
expressly denied the claim of the college management and proceeded to examine the nature of the right to education.

31

those who would otherwise be unable to access them on their own,

57

the fact that the Supreme

Court also serves as the highest court of appeal means that once the Court has taken the final
decision, the public have no right to further appeal.
The Supreme Court’s judgements in certain cases involving violation of rights in the
course of economic liberalisation serves as a relevant illustration. The Supreme Court, in cases
involving the violation of rights such as Shri Sitaram Sugar Co. Ltd v. Union of India (1990),
Peerless General Finance and Investment Co. Limited and Another v. Reserve Bank of India
(1992), Narmada Bachao Andolan v. Union of India and Others (2000) and the BALCO
Employees Union v. Union of India (2001) has strongly maintained a position supporting the
exclusion of economic policies from the purview of judicial review.58 In the BALCO Employees
Union v. Union of India (2001) case, the Supreme Court actually reversed its own ruling
delivered in National Textile Workers' Union and Others v. P.R. Ramakrishnan (1983) that
supported the right of workers to be consulted in the decision-making involving the closure of
the industry concerned. The present position of the Court in fact creates an anomaly of sorts as it
forecloses all possibilities of public litigation on the subject of economic reforms.

57

Public Interest Litigation or third party litigation have been admitted in the following few situations: (i) where the
concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded
labour, undertrial prisoners, prison inmates), (ii) where the affected persons belong to the disadvantaged sections of
society(women, children, bonded labour, unorganised labour etc.), where judicial law making is necessary to avoid
exploitation(inter-country adoption, the education of the children of the prostitutes), where judicial intervention is
necessary for the protection of the sanctity of democratic institutions(independence of the judiciary, existence of
grievances redressal forums), where administrative decisions related to development are harmful to the environment
and jeopardize people's to natural resources such as air or water. See chapter on Public Interest Litigation in Centre
for Democratic and Human Rights, The Right to Development: A Primer pp. 231-249 for a background of the
history of the PIL mechanism in India.

58

“Courts are not to interfere with economic policy which is the function of experts. It is not the function of the
courts to sit in judgement over matters of economic policy and it must necessarily be left to the expert bodies.” See
Peerless General Finance and Investment Co. Limited and Another v. Reserve Bank of India (1992).

32

On the whole however, the Indian experience over the last fifty years shows a positive
trend towards the progressive interpretation of development as a human right. The right of
citizens to be treated equally in a non-discriminatory manner, right to a dignified life, right to
information concerning public programmes are all relevant citations of the increasing recognition
of rights in development. The Indian State, as the situation as it exists today, can no longer
excuse itself of its responsibilities towards development without demonstrating that it is has in
effect utilised all possible avenues in maximising the protection and promotion of rights of
individuals in the process of development.59 Inquisitorial justiciability, which involves the
institution of an enquiry mechanism that investigates the compliance of obligations in practice,
further reinforces the increasing importance of rights in the Indian context.
The Constitution provides for the creation of special commissions such as the National
Commission for Minorities (religious and cultural), National Commission of Women and the
National Commission for Scheduled Castes and Scheduled Tribes to oversee and address specific
problems of the concerned group of citizens. A National Human Rights Commission (NHRC)
and similar commissions at the State level also exist to facilitate the monitoring of human rights
situation within the country. The NHRC at the national level has the power to inquire, suo motu
or on a petition presented to it by a victim or any person on his behalf, into complaint of: (i)
violation of human rights or abetment or (ii) negligence in the prevention of such violation by a
public servant. It also has the power to review the safeguards provided by or under the
Constitution or any law in force for the protection of human rights, study treaties and other
international instruments on human rights and make recommendations for their effective
59

The judgement in J.P.Unnikrishnan v. State of Andhra Pradesh is significant in this respect. The Court in its
judgement clarified that by recognising the right of a citizen to call upon the State to provide education facilities did
not mean that the State could absolve itself of its responsibilities by arguing that “the limits of its economic capacity
and development” did not permit so. Similarly in Vishaka v. State of Rajasthan (1997) the Court laid down legally
binding guidelines to deal with the problems of sexual harassment of women at the work Place.

33

rights of mentally ill persons and rights of communities affected by ethnic and communal riots and disturbances. health and education. The situation is not any different for other areas of development such as shelter and housing.implementation. The objective of concentrating specifically on food. The present report builds on previous studies undertaken the Centre as part of the Right to Development project. The section below takes a look at the articulation of development in the rights language by different agencies in three basic areas of intervention— food. there has been no such reference regarding a specific right to food and health. Food and Education The use of the rights language in analysing the development situation in India. and where well over a quarter of the population have no secured access to food. health and education. health and education is to identify some of the bottlenecks and challenges standing in way of the institutionalisation of a model of development patterned on the right to development in India. The focus of the present discussion has been consciously restricted to these three areas to illustrate some of the limitations of the human development approach that governs the making of development policies in the contemporary period. At the present juncture. These two legally still remain outside the purview of justiciability. 3: The Rights to Health. where the delivery of basic services has yet to be recognised as an entitlement. The last fifty-five years and more of modernisation and development have led to the creation of several paradoxes. use of bonded and child labour. The conspicuous absence of a comprehensive social security cover 34 . Some of the more important cases taken up by the NHRC involve those related to food related starvation deaths. while the Indian Government has formally recognised the right to education as a fundamental right. merits definite attention.

The report on the right to food written by Mahendra Dev examines the situation with relation to the insecurities faced by the poor regarding the availability and distribution of food in India. acceptability and adaptability— to illustrate the possibilities of implementing a model of development that explicitly gives a central place to rights to and in development.for all citizens that includes access to food. The problem lies in economic access to food at the household level. accessibility. The sections below provide an analysis of the situation by examining various facets of policy-making in specific sectors of food. The access that households have to food invariably depends on a mix of endogenous and exogenous factors such as the economic capacity and purchasing power of the household. The central concern in implementing the right to food according to him. addressing questions of access and availability of relevant basic services to justify the application of the rights approach in the contemporary model of development. the 35 . Availability per se is not a major problem because at the national level there is food self-sufficiency. The report builds on the preliminary reports submitted by experts in the field as part of this study and builds on the normative framework provided by them related to availability. health and education represents one such dilemma. The fulfillment of basic needs in such circumstances is a more than just an individual responsibility whose failure creates and aggravates further the division between those able and those incapable of fulfilling their needs— the division between haves and the have-nots. relates to the question of accessibility. The reconceptualisation of development from a rights perspective that lies at the heart of the right to development thesis provides an interesting basis for addressing some of the fundamental problems associated with development in India. towards development. This divergence in capabilities to secure one’s needs provides in fact a strong justification for laying down explicit responsibilities of various actors including the State. health and education.

and a socially iniquitous food allocation at the intra-household level between sexes. especially the poor. 36 . the right to education is of universal importance in the making of modern societies. contributing directly to the progress and intellectual development of both individuals and the nation-state concerned. The author also discusses in detail the public movement regarding the right to education that was responsible in a large way for the transformation of education into a fundamental right from being a Directive Principle of State Policy. the author calls for a comprehensive programme that supports various dimensions of health care into one integrated programme. The paper draws upon the limitations that exist in health planning that get reflected in the periodic outbreak of public health related epidemics such as plague. The paper takes a look at the process of exclusion that deters children from accessing primary-level education. In the framework provided. The right to education constitutes a fundamental right. malaria and dengue that occur in different parts of the country.existence of food distribution networks. The report on the right to health written by Ravi Duggal too has a similar focus. Reflecting upon health as being more than the mere absence of disease. curative and tertiary health care that define health interventions in the contemporary period. health care requires a more positive commitment on the part of the State including reallocation of finances that provides a guaranteed access to health services for all segments of the society. The paper challenges the existing divisions between preventive. The report on the right to education by Ravi Srivastava similarly reviews the challenges existing at the ground-level with relation to the problems that children have in terms of access to schools. As both a human right in itself and an indispensable means of realising other human rights. availability of public food distribution centres.

”61 The persistence of chronic hunger and deprivation amidst reports of surplus production in the present circumstances. II. Vol. 1993). the fact that 8 percent of Indians still do not get two square meals a day and that every third child born in the country is under weight despite surplus food grain production.1 The Right to Food Hunger in the modern day presents a real and serious contradiction. at all times have physical and economic access to sufficient. However.” The provision of food is not technically therefore a constitutionally legal responsibility of the State. safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life. 62 Jean Dreze and Amartya Sen. 3-4. 37 . p. recent interpretations of the Directive Principle by the Supreme Court of India 60 Tenth Five Year Plan.3. The reference is implicit and finds mention in Article 47 of the Directive Principles of State Policy that says: The State shall regard the raising of the level of nutrition and the standard of living of its people …as among its primary duties. The massive expansion in agricultural production over the last few centuries has made it possible more than ever before for countries such as India to ensure a guaranteed access to food for all. 316 61 Declaration on World Food Security. pp. points to the paradoxes that exist in modern day India in relation to consumption and distribution of food.62 The Constitution it must be noted does not explicitly make any mention of a “right to food” for citizens. 1996. Hunger and Public Action (Delhi.60 As per the directives of the United Nations Food and Agricultural Organization (FAO) a country is supposed to be food secure when “all people. presents not only a morally outrageous but also a politically unacceptable challenge. Rome. However.

64 S. Mahendra Dev. economic. have access to adequate food at all times. to signify the availability of 63 Reference made is to the Supreme Court Orders delivered in People’s Union for Civil Liberties v. p. on the other hand. Union of India (2001). Economic accessibility refers to the “personal or household financial costs associated with the acquisition of food for an adequate diet” at a level so that the attainment and satisfaction of other basic needs are not threatened or compromised. 2003. The report makes accessibility its entry point to the subject of food consumption. The real problem. cultural. 38 .5. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. p.have sought to make it legally obligatory for the State to undertake explicit responsibilities in the provision of food to school-going children within the country.65 Physical accessibility. discussed later in the main text. is self-sufficient in the production of basic food grains and at the national level availability of grains poses no grave problems. processing and market system that ensures that everyone. climatic. 63 The report by Mahendra Dev64 highlights some of these central issues related to the right to food in the Indian context. Right to Food in India.68. lies with accessibility at the micro-level. 66 Ibid.. irrespective of their social and economic position. conditioned by the prevailing social. report prepared for the project on Right to Development in India.66 The concept of “adequacy” has been interpreted in a broader sense. HRI/GEN/1/Rev. unlike several countries of Sub-Saharan Africa. or through a well functioning distribution. however. refers to the availability of adequate food either directly from productive land or other natural resources. Centre for Development and Human Rights. India. ecological and other conditions. The question of accessibility encompasses both economic and physical dimensions. 69. 26 April 2001. 65 United Nations.

meat and fish and to the significant decrease in per capita availability of cereals in recent years. the per capita net availability of food grains has increased by only 10 percent. the availability of cereals in the country dropped to an all-time low of less than 143 kg.7 kgs. per head. In the year 2001. when compared to 152.67 The report provides an extensive elaboration of the existing paradoxes. New Delhi. Attention is drawn to fact that in the last fifty years. for example. is nearly twice higher than Sub-Saharan Africa. vegetables. The per capita availability of food grains in 2002-03 is only a few points higher 157. 39 . “The Republic of Hunger”. and that of pulses per head similarly dropped to below 10 kgs. Attention is also drawn to the fact that India has yet to achieve self-sufficiency in non-cereal foods like fruits. Protein-energy malnutrition in India. to raise important questions related to natural and man-made factors influencing the per capita availability of food among different communities in India. 2004. milk. The author cites National Sample Survey (NSS) data to indicate the sharp decline in per capita calorie intake in rural India to demonstrate the severe crisis in food security that prevails at the micro-level in various parts of the country.food in a “quantity and quality” sufficient to satisfy the dietary needs of individuals on a sustainable basis.6 kgs. in 1950-51.68 The increase in buffer stocks and exports alongside a relatively sharp decrease in off take of food through networks of public distribution is explained as being one of the main reasons for the relatively low increase in per capita availability. The largest consumers of coarse cereals in India are mainly the poor and it is significant that the last time such abysmally low 67 68 Utsa Patnaik. Paper presented on the occasion of the 50th birthday of Safdar Hashmi organised by SAHMAT on 10 April.

ed. food distribution at the household level is rarely based on ‘needs’ of all members. In addition to these.N. a gender discriminatory pattern of intra-household distribution would still qualify as an inherent violation of an individual’s right to food.macroscan. the operational framework required to implement the right in practice however requires further elaboration and thought. pp. 40 . “The Nutritional Challenge to Health and Development” in Monica Das Gupta. The next in line are the children. Although there has been substantial discussion on all these policies. Socialisation of patriarchal norms inevitably gives male members of the household the “right” to stake the first claim to the food cooked within the house. Thus. The right to food refers to food security at both the household and the individual level. Poverty and Development in India (Delhi. Food for Work) nutrition programmes (Integrated Child Development Services and Midday Meals Schemes). with the women coming at the end.levels of availability were seen. Chen. In India. Lincoln C. there are employment programmes to increase economic access (Jawahar Gram Samriddhi Yojana. www. Among children.70 Food policy interventions in India presently include procurement measures.org (accessed July 2004). was just before the Second World War in the 1930s and again briefly for two years during the food crisis of the mid-1960s.. 202-238. as in other countries of South Asia. 70 Meera Chatterjee. boys are given preference to girls and in times of scarcity it is invariably the women along with their daughters who are the worst affected. even if the household were to have adequate food entitlements.69 While the case for application of the right to development framework to food appears strong. Employment Assurance Scheme. creation of buffer stocks and maintenance of food distribution networks. Krishnan. making do with whatever remains. Health. 1996). T. the intricacies between development policies and public action need to be further 69 Utsa Patnaik. “Food Stocks and Hunger in India”. the Annapurna Scheme for the old and the Antodaya Scheme for the destitute.

Also. from 1997 access to the system has been limited to below poverty line households. like other public programmes. the monthly quota per family made 41 . its objectives. A restructured PDS exists within the country today in the form of Targetted PDS (TPDS). to access food grains at cheaper prices. the PDS was never conceived to be an anti-poverty programme. The Public Distribution System (PDS) is one of the more well known instruments instituted by the State for improving food security at the household level in India. edible oils and kerosene to the consumers at below market prices through a network of outlets or fair price shops. However. for example. Through the PDS. The PDS programme. Previously whereas the access to PDS was unrestricted.explored to illustrate the importance of a rights approach to food and the difference between the existing policy and a rights-based policy of food security. The food distribution networks set up under the PDS help persons. The PDS. especially those from poorer households. it was only during the Sixth Five Year Plan that the welfare notion was gradually introduced to cover many of the backward districts within the country. Interestingly. the Government ensures availability of essential commodities like rice. Moreover. In fact. plays an important role in transferring food grains from surplus areas to food deficit regions and States such as Kerala. wheat. Coupled with this is the problem of incessant leakages and significant diversion of PDS rations into the market where they are made available at much higher prices. scope and limitations provide a relevant case study for the purpose of this paper. there is no transparent procedure for the identification of the below poverty households. The off-take of foodgrains by states like Kerala and Andhra Pradesh is higher than the relatively poorer states like Bihar. The scope of the programme has therefore been modified to serve poverty alleviation. Orissa and Madhya Pradesh where the need to provide relatively cheaper food is greater. the PDS too has its share of implementation problems.

health check-ups and referrals. promote child’s social and emotional development Day care services to children below 5 yrs to low income families. Pradhan Mantri Gramodaya Yojana 3.Table 3. health care.Jawahar Gram Samriddhi Yojana 2. partly paid in kind D. Swarnjayanti Gram Swarozgar Yojana 4. Annapurna Scheme B. edible oils. Day Care Centers Up to 5 kg grains per person per day A higher price subsidy on rice and wheat than BPL rates Free grain to indigent senior citizens Food grain procurement and price support. Other Nutrition Schemes 1.1: Food and Nutrition Programmes in India Programme/Scheme A. Controls on private storage. Mid-Day Meals Scheme for School Children E. p. Food-for-Work 1 kg of rice or wheat/workday Employment in lean agricultural season for rural workers below poverty line 1 kg of rice or wheat/workday 100 days employment during lean agricultural season up to 2 members/family Employment at minimum wage. Employment Assurance Scheme 3. protein for 300 days 300 calories and 8-10 gms. protein for 270 days 300 calories + 12 –15 gms. immunization. 31. growth monitoring and promotion. pre-school education to 3-6 years old. Or cooked meal (100 grams (gms. medical check up and immunization Source: S. external trade Food grains up to 5 kg per man-day 3 kg rice or wheat/child/month for 10 mos. nutrition and health education to adult women and adolescent girls. Integrated Child Development Services Scheme/ Tamil Nadu Integrated Nutrition Program 2. Balwadi Nutrition Program 4. 42 . of protein for Grade I and II children. supplementary nutrition. income generating programs Supplementary feeding Supplementary feeding to children 3-5 yrs. Food for Work 1. protein for 300 days Adolescent girls: 500 calories + 20-25 grams protein for 300 days Pregnant & nursing mothers: 500 calories + 20-25 gms.)/day) for 200 days Employment in natural calamity areas Cooked meal or distribution of food grains to primary schools 0 to 6 yrs: 300 calories (ready to eat food) + 8-10 gms. Targeted Public Distribution System 1. protein for 300 days Malnourished Children: 600 calories + 20 gms. protein for 270 days Supplementary feeding. Antyodaya Anna Yojna 2. 300 calories + 12 –15 gms. access to credit. Food Grain Price Stabilisation Volume of Food-Based Transfer BPL/ APL: 35 kg rice and wheat/ family/ month 35 kg of rice and wheat per family classified as poorest of the poor 10 kg/ month/indigent senior citizen Programme Interventions Price subsidies on rice wheat. movement. Right to Food in India. C. rice milling. sugar. rice and wheat buffer stocks and open market sales at below market prices. double the amount for Grade III and IV children. Mahendra Dev.

A public hearing on hunger and the right to food held in Manatu block of Palamau district of the eastern state of Jharkhand in 2002 following starvation deaths revealed gross irregularities in food related programmes. less than 22 paise reach the poor in all states except Goa. 72 Ibid. Frontline. 73 Bela Bhatia and Jean Dreze.71 It has been estimated that for every rupee spent.8 million tonnes— Economic Survey 2002-03. p. repeated stories of starvation-related deaths in various parts of India. There were no drought relief programmes even though the area had been affected by drought. discredit such claims. has been increasing significantly over the years.72 Policy-makers may claim credit for the fact that officially India has never had a single famine since 1943. Union of India (2001).74 Food grain procurement. “Starving still in Jharkhand”.19 (16). The Government’s open-ended policy of procurement with no set targets limiting the amount of food 71 PUCL v. as mentioned above. despite the recent deceleration in food grain production.available is not adequate to meet the nutritional standards set by the Indian Council of Medical Research. 2002. Vol. Daman and Diu where a slightly higher proportion—28 paise— reaches the poor. 92. 43 . However.73 The contemporary paradox of “starvation amidst plenty” whereby food grain stocks are proportionately higher than the actual buffer requirements raises certain important points related to the functioning of food programmes in India.2 million tonnes for example were much above the buffer requirement of 16. August 3-16. no significant efforts were made by the Government to tackle cases of hungerrelated deaths. Also more importantly. 74 Central food grain stocks as on 1 Januray 2003 at 48. The PDS was found to be non-functional and no mid-day meals were being given in the local schools. Development works were at a standstill with people having no recourse to either rations through the PDS or government operated work for food programmes.

1994). there may be shortage of food. What is important is that the food must reach the hungry. but distribution of the same amongst the very poor and the destitute is scarce and non-existing leading to malnutrition.P. along with disproportionate off take of food. Deprivation is not just an individual phenomenon but in majority of cases. infants suffering from low-birth weight are vulnerable to stillbirths. obesity and diabetes. Sachdev and Panna Choudhary. Indicative of poor antenatal care and poor maternal nutrition during pregnancy.S. Gopalan. 2003. depletion of natural resources base. “Low Birth Weights: Significance and Implications” and Santosh K. Low birth weights generally indicate intra-uterine growth retardation (IUGR).. is partially responsible for the massive accumulation of food stocks in the public warehouses.” A look at the Government’s Food for Work Programme reinforces the Court’s stand. Recent studies have also shown a positive link between low-birth weight and increased risk of chronic degenerative diseases such as coronary heart disease. starvation and other related problems…Mere schemes without any implementation are of no use. Nutrition in Children: Developing Country Concerns (Delhi. A clear nexus. It is this paradoxical situation of hunger amidst plenty that raises important questions about the State’s responsibility towards eliminating hunger-related morbidity and deaths.1-45.. has an inter-generational effect as well.grains to be procured. ed. 44 . physical and geographical inaccessibility etc. The lack of adequate food affects the lives of individuals in multiple ways. pre-term deliveries and stunting in childhood. The irony of the deprivation has been captured by the Supreme Court of India in its order of 2 May. Plenty of food is available.75 While deprivation of food may be a result of several other factors such as insufficient purchasing power. for example. Dadhich.5 kgs. but here the situation is that amongst plenty there is scarcity. the deprivation has a definite effect on capabilities leaving indelible marks on the question of dignity and worth of human lives. 75 See C. Bhargava and J.P. has been found to exist between anemic women and infants weighing less than 2. pp. The order reads “in case of famine. “Maternal Nutrition and Fetal Outcome” in H.

The length of employment is between 10 to 20 days.76 The hold-up in the allocation and release of both funds and food grains by the Government has been identified as being one of the major causes for delay. Food for work programmes were initially started in 2000-01 as part of the Employment Assurance Scheme (EAS) in eight notified drought-affected states of India. In fact. January 2004). which is however much less than the 100-day period of the EAS. It cites for example the case of the Government of Rajasthan following a policy of “labour ceilings” which restricts employment as per the Government’s own statistics to less than 5 percent of the drought affected population. Other problems such as widespread cases of corruption. minor irrigation and link roads. These programmes now form a part of the Sampoorna Gramin Rozgar Yojana (SGRY). The writ petition filed by the People’s Union for Civil Liberties cites examples of cases where the SGRY has failed to provide the necessary relief to people affected by drought. mechanization of work processes that directly undermine the effectiveness of the Scheme. 5000 crores and 5 million tones of free grain. The SGRY seeks to base its strategy of employment on the creation of useful community assets that have the potential for generating sustained and gainful employment such as water and soil conservation.Famine codes operational in various states make it mandatory for the Government to provide employment when a drought is declared. Legal Action for the Right to Food: Supreme Court Orders and Related Documents (place of publication not mentioned. afforestation and agro-horticulture. The SGRY provides for an outlay of Rs. 45 . the latter aspect has been focused upon in the report submitted by the Commissioner looking into the functioning of the SGRY. The failure to pay the legal minimum wages has also been reported in several places. The experience of the SGRY has a striking similarity to the functioning of the PDS. leakages and non- 76 Right to Food Campaign.

transparent allocation of both opportunities and funds work jointly to reduce the effectiveness of the SGRY at the ground level. Furthermore. The State’s obligation rests on the assumption that human beings. At a primary level. This includes strengthening people’s access to and utilisation of resources in both normal and extraneous circumstances. families and groups strive to take care of their livelihoods through their own efforts or resources. For example. the Indian State therefore has the obligation to respect which includes a positive affirmation on the part of the State not to undertake any action that would cause obstruction or hindrance in the process of right’s fulfillment. the State also has the positive obligation to facilitate and aid the process of rights realization by undertaking affirmative action that guarantees suitable opportunities and means for citizens to realize their needs. dumping and hoarding of food grains by third parties. marketing. individually or in association with others. At the same time. The Indian State as part of its constitutional obligations has legally binding responsibilities towards the achievement of progressive realisation of the right to food within the country. can a food programme such as the PDS be made to work in isolation from the community that it seeks to serve? Is the programme neutral to questions of caste and class that play an important role in determining the access that people have to public services in a given region? What is the vision and approach that the programme propounds? What are the institutionalised mechanisms that exist that facilitate the participation of even the most disadvantaged section in the process of 46 . the Indian State also has the obligation to safeguard and protect rights and freedoms of citizens from the negative actions arising due to unethical practices in trade. The failure to provide adequate nutrition by the State resulting in starvation related deaths raises important questions related to the political economy of development. as well as seek to fulfill their needs.

in recent years.78 Trends in dietary patterns indicate disproportionately high intake of carbohydrates over proteins. “Liberalisation of Pulses Sector: Production”. 78 D. for example. especially trade in agricultural goods. 3391-3397. poses serious questions from the point of view of the above obligations. have been adjusted to accommodate increased cultivation of cash crops like cotton and groundnuts. Sathe and S.S. especially exports of non-food crops. July 2004. pp.formulation and transparent and accountable functioning of the programmes? The above set of implementation-related problems common to all public programmes in fact strengthens the case for the institutionalisation of a rights–based approach to food. Land devoted to the cultivation of pulses witnessed a simultaneous reduction as a result of which in the first half of the 1990s.9 kgs.7 percent every year with a simultaneous decrease in per capita food availability from 173. Economic and Political Weekly. nutrition and education concerns of children is a relevant example of the type of programme that the Government could actively 77 M. food output declined by 1. The decline in per capita availability. in the early 1990s has had an overall negative impact on the prospects of increasing the per capita availability of food. The fillip given to agricultural trade. Swaminathan. 47 . Aggarwal. “Food for Peace and Development”. (2000-01). The Hindu. The decline obviously has serious ramifications on the future prospects of food security. 2002. Land usage patterns. January 10. (1991-92) to 159.5 kgs. especially in cases of poor families. The National Programme for Nutritional Support to Primary Education. The widespread programme of liberalization. popularly known as the Midday Meals Scheme that consciously links health. women and children will necessarily involve more positive action on the part of the State.77 The change in cropping patterns from food to non-food along with the reported decline in outputs of both cereals and pulses were some of the factors contributing to the decline.

Maharashtra. the programme was initially dismissed as being nothing more than a crude electoral gimmick. the programme helped break age-old practices of segregation based on caste and class. 48 . for example. Kamaraj who introduced it as the ‘Poor Feeding’ programme. Orissa. Further. Rajasthan and Uttar Pradesh. fruits. In 1961. by making collective eating of meals a classroom norm in all State schools. The Government supplies the schools with raw provisions (vegetables. but became a state-wide scheme in 1956 under then Chief Minister the late K. pulses and cereals) and the school administration in turn ensures that cooked meals are provided to all children attending school. But it was only in July 1982 under the leadership of the legendary Chief Minister the late M. The need for a comprehensive nutrition programme for pre and primary level school children such as the above is becoming increasingly 79 The mid-day meal scheme for school children was introduced in Tamil Nadu as early as 1925 by the Corporation of Madras. The programme initiated in 1975 aims at improving the health and nutrition status of children (0-6 years) and mothers by providing supplementary food and training through health and nutrition education programmes. Bihar. The World Bank. Initiated in 1982 in the southern state of Tamil Nadu.G. International assistance has been forthcoming for the ICDS in recent years. The Integrated Child Development Services (ICDS) constitutes another relevant programme in this regard. the government started receiving American aid for the programme and it was expanded to all corporation and government schools in urban areas. Additionally it also provided employment to destitute mothers who worked as cooks in the various noon meal centres in the State. Madhya Pradesh. Not only did the programme assure that school-going children in Tamil Nadu had daily access to lunchtime meals.support. a corresponding increase in school attendance was also reported. has financed the expansion of the ICDS programme in states of Andhra Pradesh. A mid-day meal scheme typically involves the supply of cooked meals to school going children in government and government-aided primary schools. Kerala. Ramachandran that the ‘Puratchi Thalaivar MGR Nutritious Meal Programme’ (PTMGR NMP) was introduced in a phased manner in child welfare centres in rural areas for preschool children in the age group two-five years and for primary school children in the age group five-nine years.79 However apparent benefits soon proved the critics wrong.

P. While the Government through its programmes can create an awareness about the importance of an wholesome diet. The above point does not seek to generalise against the existing policy of providing routine iron supplementation during pregnancy. Vol. The absorption of essential nutrients like iron and folic supplements is largely dependent on the health of the individual. due to greater chances of rejection. “Management of Iron Deficiency Anemia in Clinical Practice” in H. n. p. until it actually ensures that such a diet is readily available to such women (either through daily supplies of milk and vegetables or through the distribution of food coupons) a widening gap would continue to exist between reality and practice. II.important given the fact that while mortality rates and fertility rates have come down by 50 percent and 40 percent respectively. the provision of natural supplements such as vegetables and fruits is more suitable. 316. the State must also be sensitive towards persons who are actually dependent on agriculture for their livelihood. reduction in under-nutrition as per official estimates has been only 20 percent. ed. 242. 76. Sachdev and Panna Choudhary. It simply points to the fact that health practitioners need to be sensitive and aware of situation where such supplementary provisions are not actually yielding any productive results. Nutrition in Children: Developing Country Concerns. Tenth Five year Plan. especially for pregnant women. For undernourished individuals. The relatively significant decline of public expenditure in 80 Planning Commission.. providing supplementary nutrition is just one component of the larger programme that the State needs to undertake to ensure adequate food to all. However. 49 . Similarly. it is significant that the Mid-day Meal scheme has recently been given legal sanctity through an interim order of the Supreme Court of India (28th November 2001) that makes it mandatory for State governments to provide cooked mid-day meals in all State schools. p.S. 81 See Panna Choudhary.81 This is more relevant in the case of women since the nutritional status of the mother is directly related to the infant's chances of survival and its subsequent growth and development.80 In this context.

is under pressure from the World Trade Organization (WTO) to reduce aid and subsidies and lower tariff barriers in agriculture. for example. has had farmers committing suicides in the last three to four years in the wake of increased costs.southcentre. provides 6. Punjab.5 percent (2000-01). In recent years.6 percent in 1993-94 to 1. “ Liberalisation Hurts India’s Subsistence Economy”. Investments in agriculture (public and private) as percent of GDP have come down from 1. The WTO agreement on agriculture states that aggregate measures of support (AMS) must not exceed 10 percent of the total value of agricultural production in developing countries and 5 percent in developed countries. machinery and irrigation systems. 50 . Contrary to popular notions. in reality the support given by the developed countries far exceeds the WTO stipulations. Ministry of Finance. for example. Government of India.3 percent in 200001. Farming in Punjab is essentially investmentintensive. while the European Union provides 49 percent and the United States 24 percent. the richest state in India. India. India. A large percentage of this decline has been due to decreasing share of public sector expenditures in agriculture that have come down from 33 percent (1993-94) to 23. www. 83 The Indian Government has a policy of Minimum Support Price (MSP) through which it seeks to 82 Economic Survey 2002-03.82 Reduction in important subsidies related to inputs such as fertilizers have increased dependence and vulnerability among farmers. diminishing returns and expanding debt burden.htm. like other developing countries. there has been no such increase in the selling price of commodities. new seeds. farmers in Punjab incur more costs than profits in agriculture. pesticides. Japan. while the costs of agricultural production have increased. provides support worth 65 percent of its agricultural GNP. 83 Roland-Pierre Paringaux. However.5 percent of its agricultural production as support. accessed June 2004. in comparison.org/info/southbulletin/ bulletin42/bulletin42-02.agriculture in recent years has been a cause for concern. requiring tremendous inputs of fertilisers.

increasing in effect the cumulative risk faced by farmers. for example. However. an analysis of government procurements under MSP reveals that three main States—Punjab. Haryana and Andhra Pradesh— where the contribution to the total national production of foodgrains is only about one-fourth. had risen from US$ 3136 million in 1992-93 to US $6868 million in 1996-97. 12-13. However. However. since the Government cannot afford to buy every unsold crop. provide for over 75 percent of the total purchases. in a progressively liberalised economy. It may be recalled that the initial response to the proposal of increasing exports in agriculture had been largely positive in the early 1990s. Agricultural exports. 2001. an analysis of its functioning brings out certain glaring defects that reduce the potential benefit of the MSP mechanism. 51 . The operation of the MSP in the 1990s is an indication of the fragile security that the policy can provide to farmers. 88. this has a certain disadvantage as it sets a standard that may at times depreciate the market prices of commodities. the price fixed under MSP is often lower than the prevailing market price.fix procurement prices for listed agricultural commodities. the little magazine. p. who contribute nearly three-fourths to the of the total foodgrain production do not stand to benefit from the government purchases. towards the late 1990s. pp.84 Farmers in the rest of India.85 Moreover. the greatest beneficiaries of the MSP regime are invariably the more privileged farmers and not small farmers and peasants. 85 Amartya Sen. Also. “Hunger: Old Torments and New Blunders”. The MSP in principle seeks to work as a protective cover for farmers guaranteeing them the security of assured sales. For example. in reality. especially those totally dependent on agriculture for their sustenance. such exports slipped as Indian goods lost out to relatively cheaper products from 84 Economic Survey 2002-03.

water) led to poor profits for farmers and the relative stagnation of the Indian farm sector. which caused depreciation in the prices of domestically produced cotton.developed countries. “Agricultural Trade Policy: The Case for Caution”. Similarly the report also recommends the institutionalization of a system of decentralised procurement to benefit both farmers and consumers. The report submitted by Mahendra Dev makes certain recommendations regarding agriculture and the right to food of people in India. www. It specifically calls for limited responsibilities for the FCI. Lower prices for output (agricultural produce) compared to higher prices of farm inputs (fertilisers. Agricultural exports have however picked up since then and in 2000-01. 86 C. 52 . improvements in the delivery mechanism of the PDS and increasing access to food through specific work programmes. while simultaneously improving the financial position of the government.86 There was a significant surge of cheap imports such as cotton.org.P. These include reforms in procurement and buffer stock. The MSP mechanism that was successful in providing some sort of security to farmers now faced problems on account of fluctuations of commodity prices at the international level. seeds. Additionally it also recommends control in the rise of minimum support prices for certain commodities— a suggestion also made by the Commission for Agricultural Costs and Prices (CACP). the Food Corporation of India (FCI). the report calls for the involvement of the private sector in the storage and distribution of food grains. Acknowledging the inefficiency of the principal agency involved with procurement and distribution. with the responsibility of operating the PDS transferred to respective state governments. macroscan. Chandrasekhar and Jayati Ghosh. Ministry of Finance. Government of India. Low prices combined with significant damages to crops increased the vulnerability of farmers depending solely upon production of cotton. they constituted US $6004 million— Economic Survey 2002-03. machinery.

employment and rural transformation in the realisation of the right to food. It also calls for the ready implementation of the recommendations of the Committee on Long-term Grain Policy to do away with the problem of excess stocks. along with a number of secondary benefits such as creation of productive assets. Recent moves to relate the provision of food through a constitutionally guaranteed scheme of employment based on the patterns of the Employment Guarantee Scheme (EGS) instituted by the State of Maharashtra represents a step in that direction. reduced rural-urban migration and significant reorganisation of social relations. January 2004.Regarding the functioning of the PDS. The EGS has been functional now for nearly three decades. the report recommends geographical targeting rather than income-based targeting. Work for All at a Living Wage: Towards an Employment Guarantee Act. It specifically recommends the effective implementation of Food for Work Programmes that can improve food accessibility such as Employment Guarantee Scheme along with innovative Schemes like Grain Bank and Food Credit Schemes to stop the large scale exodus from rural areas. submission of false and inflated muster rolls by officials. yet the fundamental guarantee of employment enforceable in the courts of law that the EGS provides to individuals. For minimising diversion and leakages from the PDS. the report supports the introduction of innovative schemes like the food coupon system or the food credit card scheme.87 87 Right to Food Campaign. have led to increasing demands for the universalisation of the EGS to address the specific problems of accessibility and availability of food confronting a large majority of the under-nourished in India. higher agricultural wages. There have been certain shortcomings such as low wage rates. 53 . The report also highlights the importance of economic access. low turnout of the unemployed at work sites.

2 primary health centres and 44 beds per 1. which have approximately 0. sanitation and public health education. These first referral hospitals provide in-patient and out-patient care with diagnostic and treatment facilities that are generally not available at the primary level. However. consisting of hospitals of various bed strengths. In the middle are the first referral hospitals or secondary level hospitals. which are staffed and equipped to provide more specialised treatments and generally have a capacity of 750 beds. report prepared for the project Right to Development in India for Centre for Development and Human Rights.000 million beds in the country as a whole. the proportionate distribution of health facilities between urban and rural areas reveals a highly unequal pattern of distribution of health infrastructure across areas.00. 000 population. with emphasis on preventive and promotive aspects such as family planning.2 The Right to Health Linked closely with the right to food. 54 . 000 population. According to data available. 1. 2003. The resurgence of communicable diseases and the highly inequitable access to health care facilities makes health care an important area of concern for a country such as India.37 dispensaries.000 hospitals. 3.670 dispensaries and about 1. malarial treatment and spraying. maternal and child health. is the right to health. at community.000. treatment of minor ailments.16 dispensaries and 308 beds per 1. there are roughly 17. including teaching hospitals. ranging generally between 30 and 550 beds. 12. At the top of the health structure are the tertiary hospitals. Health and Development in India: Moving Towards Right to Health Care. The public health system in India is roughly organised along a three tier structure. p. 6. In contrast to rural areas. 25.00. sub-divisional and district levels.48 hospitals.3.88 The prevalent situation 88 Ravi Duggal. At the bottom are primary health care facilities where basic health services are provided. the allocation of health services is disproportionately higher for urban areas where there are roughly 4.77 hospitals.

The right to health is not restricted simply to the right to health care. The freedoms include the right to control one’s health and body. extending to the underlying determinants of health. 40-43. 90 United Nations. 55 . including sexual and reproductive freedom. p. fever.where a small minority have access to some guaranteed health care facilities presents a strong justification for the re-conceptualisation of public health care along the rights framework.5.91 The prevalence of diseases such as gastroenteritis. p. National Human Development Report 2001 (New Delhi. In India. 119.90 Rather the right embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life. the rights approach to health seeks to reorient policy prescriptions. rather than the limited obligation of respecting and protecting. 26 April 2001. The report by Ravi Duggal89 on the right to health in India draws attention to precisely such an exercise. and roughly about 22 percent do not have any access to drinking water from pumps or pipes. HRI/GEN/1/Rev. etc. The overcrowding in cities. with people residing in shanty dwellings also explains the widespread prevalence of cases of tuberculosis. pp.92 The right to health comprises both freedoms and entitlements. India accounts for nearly 68 percent of leprosy and 30 percent of the world’s tuberculosis. nutrition. 91 Planning Commission.. is therefore self explanatory. approximately 64 percent of all households have no toilet facility. As an essential component of individual well-being. leprosy and malaria (where stagnant water is a common feature). such as food. 2001). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. access to safe and potable water and adequate sanitation. safe and healthy working conditions and healthy environment. Vol. focussing on the more important aspects of provision and fulfilment of health care. 90. II. and the right 89 Ibid. 92 Tenth Plan. housing.

goods and services. 91. . The Right to Development: A Primer. insufficient expenditure or misallocation of public resources which results in non-enjoyment of the right to health. 97-100. failure to monitor the realisation of the right to health. 93 Violations of the right to heath can occur through the direct action of States or other entities insufficiently regulated by States.95 There was relatively little difference between the health policies of the colonial and post independence period. 26 April 2001. p. The rural population consisting of the poor. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. The health sector was developed in enclaves— with a clear bias towards urban segments. such as the right to be free from torture. vulnerable and underprivileged sections enjoyed restricted 93 United Nations.5. Examples of violations of the obligation to fulfil include failure to adopt or implement a national health policy designed to ensure the right to health for everyone. while Independence in 1947 provided a historic opportunity for the Indian State to institute a universalised system of health care the Cabinet rejection of the Bhore Committee’s recommendations foreclosed the possibilities of any such changes. 95 The Bhore Committee was a contemporary of the Beveridge Committee that laid the basis for Britain’s National Health Service Act of 1946. 94 Centre for Development and Human Rights. pp. failure to adopt a gender-sensitive approach to health and failure to reduce infant and maternal mortality among others.94 Ravi Duggal in his report delves on some of the limitations (both conceptual and structural) that characterise policy making on health in India. which provides equality of opportunity for people to enjoy the highest attainable level of health. According to him. HRI/GEN/1/Rev. The entitlements include the right to a system of health protection.to be free from interference. 56 . non-consensual medical treatment and experimentation. failure to take measures to reduce the inequitable distribution of health facilities.

(d) inadequate development of various pre-conditions of health like water supply and sanitation. (f) adequate resource availability when we account for out-of pocket expenses. though inequitably distributed and last but not the least of all wasteful expenditures incurred due to lack of regulation and standard protocols for treatment. n. (e) inadequate and declining investments and expenditure in public health. The inequity was further strengthened for instance by State policies which facilitated the growth of rapid and generally unregulated private health sector.96 The report draws attention to a number of limitations that were a part of the historical baggage and continue to be associated with the administration of health services in India. (d) very large numbers of unqualified and untrained practitioners. (c) existing inequities in access to health care based on employment status. 96 Ravi Duggal. environmental health and hygiene and access to food.access due to non-availability of public heath care facilities of credible quality. which need to be sorted out to fit the new strategy of rights-based approach to health. Specific features of this historical baggage include: (a) a very large and unregulated private health sector with a disinterest in organising around issues of self-regulation. Health and Development in India: Moving Towards Right to Health Care. and the setting up of private hospitals through State funding were measures that helped the private sector to gradually develop an overwhelming presence in the country. 88. 57 . These included the production of doctors for the private sector through State financing. improvement of quality and accountability. (b) a declining public health care system providing selective care through a multiplicity of schemes and programmes and discriminates on the basis of residence (ruralurban) in providing entitlements for health care. gender and purchasing power. production of bulk drugs to supply at subsidised rates to private formulation units. (g) human power and infrastructure reasonably adequate.

This would increase human resources with the public health system substantially and would have a dramatic impact on the improvement of the credibility of public health services. this would lead to redistribution of current expenditures and substantially reduce inequities based on residence. public and private. as also make public service of a limited duration mandatory before seeking admission for post-graduate education. (iii) generating a political commitment through consensus building on right to health care in civil society. (ii) strictly implementing the policy of compulsory public service by medical graduates from public medical schools. Recognising the fact that the above would necessarily entail a long time to realise. and lastly (v) the redistribution of existing health resources. on the basis of standard norms (these would have to be specified) to assure physical (location) equity. (ii) incorporating a National Health Act (like for example the Canada Health Act) that would organize the present health care system under a common umbrella organization as a public-private mix governed by an autonomous national health authority responsible for bringing together all resources under a single-payer mechanism. (iv) development of a strategy for pooling all financial resources deployed in the health sector.To establish the right to health and health care. (iii) essential drugs as per the World Health Organization (WHO) list ought to be brought back under price control (90 percent of them are off-patent) and/or volumes needed for domestic consumption must be compulsorily produced so that availability of such drugs is 58 . Local governments would also have the autonomy to use resources as per local needs within a broadly defined policy framework of public health goals. the report recommends the following measures: (i) equating directive principles with fundamental rights through a constitutional amendment. Duggal recommends following measures as priority: (i) allocation of health budgets as block funding. that is on a per capita basis for each population unit of entitlement as per existing norms.

for example. and as a consequence the Council is failing to protect patients who seek care from unqualified and untrained doctors. strict regulation of the private health sector as per existing laws ought to be enforced. According to Duggal. In addition. (iv) local governments must adopt location policies for setting up of hospitals and clinics as per standard acceptable ratios. fiscal measures to discourage such concentration should be instituted. making more public resources available for use. Medical councils should. general surgery. so as to contribute towards improvement of quality of care in the private sector as well as create some accountability. To restrict unnecessary concentration of such resources in over-served areas. execution of the above measures would provide the essential basis to move onto implementing the core contents of health care. he recommends strengthening the health information system and database to facilitate better planning as well as audit and accountability. for instance one hospital bed per 500 population and one general practitioner per 1000 persons. but is not being fulfilled. Additionally the existing employee-based health schemes ought to be integrated with the general public health system so that discrimination based on employment status is removed. Such monitoring is the core responsibility of the council by law. obstetrics and gynaecology. including dental and ophthalmic services. primary health care services should include the following: general practitioner/family physician services for personal health care. first level referral hospital care and basic specialty and diagnostic services (general medicine. paediatrics and orthopaedic). Additionally. immunisation services against all 59 . Keeping the Indian context in mind.assured at affordable prices and within the public health system. not renew licenses (as per existing law) if the required hours and certification are not accomplished. Finally. he also recommends that medical councils be made responsible of monitoring medical practices.

remains highly centralised. despite attempts at decentralisation.3 percent for health. the share of health in total plan outlays has been progressively decreasing. decrease in infant and child morbidity and mortality. successful eradication of certain diseases. as they are the core minimum and hence non-negotiable. While as a country India has made progressive movement in improving health outcomes such as an increase in life expectancy. delivery and postnatal care and safe contraception. occupational health services with a clear liability on the employer. epidemiological services including laboratory services. ambulance services. While the proportionate share of health may be relatively less. Health planning in India. the fact remains that these achievements have not formed the basis for the emergence of a healthy society. maternity and reproductive health services for safe pregnancy.vaccine preventable diseases. and makes it important to have a closer look at the framework governing the administration of health policies in India. safe abortion. pharmaceutical services— supply of only rational and essential drugs as per accepted standards. safe and assured drinking water and sanitation facilities. While the First Five Year Plan earmarked a share of 3. health expenditures make up for only 0. minimum standards in environmental health and protection from hunger to fulfil obligations of underlying preconditions of health. The Ministry of Health and Family Welfare along with the Directorate of Health Services form the two main nodal agencies responsible for formulating and coordinating resources and plans between the Centre and the States. information management and public health measures. At present. rehabilitation services for the physically and mentally challenged and the elderly and other vulnerable groups. State governments are nevertheless 60 . health education.9 percent of the total central allocations. surveillance and control of major diseases with the aid of continuous surveys. The above listed components of primary health care according to the author are basic whose realization cannot be broken up into stages.

The lack of transparency and accountability in the making of health policies represents another serious concern. which made policy reforms a condition for continued assistance. (b) substituting public funds with private funds in secondary and tertiary hospitals by instituting user-charges. pp. 98 India: Completion Report of the Social Safety Net Sector Adjustment Program. 1995). South Asia Country Department II (Washington DC.99 In addition to these. 14666. Report No. This indirectly creates and reinforces a pattern of vertical dependence that invariably leads to further centralisation. particularly preventive and promotive. 1995). 13042-IN. serves as relevant case in point. (c) implementing full cost recovery from private and government-subsidised insurance schemes.98 The specific reforms recommended by the World Bank in the context of health sector are basically the following: (a) redirecting incremental resources almost entirely to primary and secondary health care. the World Bank also seeks to enhance the role of the private and voluntary sectors in the delivery and management of health services by essentially encouraging (a) 97 Moushumi Basu. Population and Human Resources Operations Division . contained specific conditionalities and guarantees by the Government to introduce a series of sectoral reforms in health within the country.97 The Social Safety Net (SSN) Credit that was signed between the World Bank and the Government of India on December 17. as well as enhancing non-tax revenues. “World Bank’s Lending to the Social Sector in India”. South Asia Country Department II (Washington DC. 1992. xv-xvi. 99 India: Policy and Finance Strategies for Strengthening Primary Health Care Services. and (e) protecting expenditures on preventive and promotive services from fiscal cuts engendered by the stabilisation program. (d) reducing public subsidies for medical education. The absence of debate on the health sector reforms initiated by the Government in the mid-1990s largely ordered by the World Bank. 2003. Population and Human Resources Operations Division. 61 . Doctoral Thesis (unpublished). 22 June.dependent on Central assistance for execution of State health programmes. Jawaharlal Nehru University. Report No.

The World Bank’s logic of equating health services as having mostly private benefits. Such an approach is highly unsuitable for a country like India where control of the total number of infectious cases is equally important as the cure of the chronically infected cases. for example. that need to be specifically addressed. and (b) promotion of health care delivery by private and voluntary sectors. However. Recent moves to introduce user-charges for health care services as part of the reform programmes represents another major issue of concern. 62 . there are. The identification of health as an entitlement in such a framework gives way to a new culture of health care where a person’s ability to pay determines the quality of health care that he/she receives. works to restrict the scope of public health care to a minimalist programme of essential clinical services. certain issues arising especially from the point of view of the rights framework.contracting of select services. The emphasis becomes inevitably on reducing the specific disease burden of death and disability rather than on controlling the prevalence or source of disease. At the conceptual level. The introduction of user-charges for health services within the country seeks to divide individuals depending on their economic ability into various categories. from the purview of health policies. with curative care— while those with mostly public benefits. While there are certain merits in the World Bank’s thrust of re-organising the public health systems in India. however. for which there is greater willingness to pay. for which there is lesser willingness to pay. with preventive care— works to pit curative services versus preventive in a most devious way. toilet facilities and so on. Generally the transaction of payments introduces a certain level of responsiveness and accountability between service providers and consumers. the exclusion of concerns for improving the immediate environment through the provision of safe potable water.

especially in the rural countryside. the private sector. 100 Taking care of nearly three-fourths of the total health related problems of the country. the private sector in India is largely an unregulated one. includes numerous private dispensaries. The absence of a personalised health insurance policy for the economically disadvantaged sections restricts the access that the poor have to services associated with tertiary-level health care. removal of subsidies for drugs.in the context of health reforms in India. For example. Private dispensaries in the Indian context. and a simultaneous cutting down of services offered. While there are specific laws which have been enacted by the Government for this purpose. works to further disadvantage the poor. The reduction in the number of free beds. The present thrust on dis-investing the state sector and privatising health care. the private sector in India functions largely immune. In India. though the law of the country stipulates that Medical Councils assure that only those having the appropriate qualifications be allowed to practice. there are numerous instances where unqualified persons set up practice or indulge in irrational or other malpractices. hospitals and nursing homes constitute the most frequent and the more significant part of private health care. The example of health insurance provides a relevant illustration of the contradictions that further increase the disadvantages that the poor face vis-à-vis the rich in relation to health care. are usually one or two bed day care centres. Institution wise. also needs to be further explored. 63 . 5-10 bedded are referred to as nursing homes. without any minimum standards in the provision of services. in reality. The absence of fixed schedules of charges for medical services is yet another instance of the 100 Usually small private hospitals. while in the urban areas there are some without beds registered as private clinics. nursing homes and hospitals. no such guarantees exist for patients. apart from individual practitioners.

The Supreme Court. the difference was still larger— Rs. there exists a strong case for institutionalising a participatory approach based on the concept of rights. wrong diagnosis. or charging of exorbitant fees for even routine tests and services constitute relevant examples101 Realisation of the right to health therefore involves a much larger spectrum of issues than just the mere provision of health care. 1998) for example found that the expenditure per ailment in the private sector in rural areas was approximately Rs. such as medical negligence. Charging more than government hospitals. 58 more than that charged in the public sector. in education too. As in the case of food and health. 64 . The majority of the cases that come at various courts deal with the procedural violations of the right to medical care. Ram Lubhaya Bagga (1998) for instance upheld the obligation of the State to secure health to all its citizens as its primary duty.disparate functioning of private health care providers. The Court held that the State could neither urge nor say that it had no obligations to provide medical facilities. 2002) for further details. Report No. At present the discussion on the right to health pertains more to the aspects of health care than to the determinants of health. in its judgement in State of Punjab v. There are relatively few cases that deal with a more comprehensive right to public health. report prepared for the project on the Right to Development in India for the Centre for Development and Human Rights. 2003. It is an illusion of sorts among policy makers that the poor have relatively little interest in sending their 101 Surveys conducted by the NSSO 1996. under-trial prisoners. Supreme Court judgements related to various categories of persons such as workers. 89. 441-52nd Round (New Delhi. The Right to Education in India. In the urban areas. 103 Ravi Srivastava.3 The Right to Education Ravi Srivastava’s report103 on the right to education provides a comprehensive review of the status of education in India. HIV affected patients have sought to emphasise the importance of the right to health and health care to these specific groups of people.102 3. Legal Framework for Health Care in India (New Delhi. 102 See The Indian Law Institute. compensation etc.

In 1986-87. Despite the minimum norms for infrastructure laid down under the Operation Blackboard scheme launched in 1986. While facilities for schooling according to him have grown very significantly in post-independent India— the number of primary schools have trebled during the period. in India as a whole. 40 percent of primary schools were single teacher schools with a single 65 . While there have been significant improvements in the number of children going to school over the past decade. Ravi Srivastava in his report focuses on some of the measures undertaken to address these concerns. He also draws attention to qualitative discrepancies in education that exist between private and public schools in India. In the rural areas.children to school. 24 percent of the children in the 6-14 year age group are still out of school. In education. While the primary responsibility of providing education especially after the new amendment lies with the State. class. The same is the case regarding the availability of teachers. like in other cases. Rajasthan. Uttar Pradesh and Orissa). Five educationally poor states have a higher percentage of children out of school compared to the national average (Bihar. the percentage of such children is higher at 27 percent. Presently. the discussion is not about interests but opportunities and spaces. about 15-20 percent of state schools make do with only one classroom while 5 percent of schools do not have any classrooms at all. there is an essential role that members of civil society can play in ensuring that all children actually go through the process of schooling. Similarly children have no access to safe drinking water in 40 percent of schools and no access to separate toilet facilities for girls in 15-20 percent of the schools. access to education still remains restricted for a large number of children on grounds of caste. Madhya Pradesh. 195191— yet 17 percent of rural habitations continue to remain without primary schools. The gender differentiation is equally noticeable with more girls than boys out of school in most states. gender and region/location.

104 Such challenges include the tensions between. certain questions remain unanswered pertaining to this aspect of the State’s obligation. competition and 104 United Nations. Is the obligation towards fulfilling the right to education limited to providing for more schools. Madhya Pradesh.5. HRI/GEN/1/Rev. What do the obligations of respect. The report also analyses the implications of the recognition of the right to education as a fundamental right in India. 66 . or does it also involve taking up initiatives that specifically address the content and quality of education that children receive. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. However. while a number of Government programmes have begun focussing on the qualitative aspects of education. the pupil-teacher ratio. inter alia. especially in the educationally backward states of Uttar Pradesh. while in the 1990s this gap was reduced through increased recruitment of teachers under the Operation Blackboard scheme as well as the externally financed District Primary Education Programme (DPEP). the global and the local. the individual and the collective.teacher teaching in a one instructional room. long and short-term considerations. tradition and modernity. At present. protect and fulfilment signify in terms of specific actions that the State must undertake to make primary education universally available? Or can receiving poor quality education be classified as a violation of the right to education. and its recognition as a fundamental right in the Indian context is significant. 26 April 2001. However. Undoubtedly. A child’s right to education is not only a matter of access but also of content. Bihar and Rajasthan has increased considerably. it is not very clear as to how the right to education enshrined in the Constitution shall ensure that children in India will not be deprived of receiving quality-level schooling. the right to education forms a basic and fundamental pre-condition for the realisation of other rights.

At present. The Andhra Pradesh Primary Education Project (APPEP) 105 Department of Education. 2003105 that seeks to provide for free and compulsory education for all children from the age of six years up to fourteen years throughout India. the Indian Government did not consider approaching international aid agencies for funding in education. External aid coming in for primary education in the 1990s provides an opportunity to examine the potential impact that increased resources can have in meeting the goal of universal primary education in India. the expansion of knowledge and the capacity to assimilate it and the spiritual and the material. Except for a few technical assistance programmes in the 1950s and the 1960s.nic. External funding for primary education is a relatively new experience. considering the high drop out rate ranging up to 60 percent and the large number of out-of-school children (about one-third) and high wastage taking 7. notebooks. other study materials. In 1983. health care and nutrition where State Governments undertake to make provisions for such services. It could also extend to provision of free supply of textbooks. Government of India. Ministry of Human Resource Development.equality of opportunity. The Government has in this regard initiated the process of consideration of a bill titled The Free and Compulsory Education For Children Bill.in 67 . www. The right to education for a child is as much about the quality of education received as access to schools. free education means exemption from the obligation to pay tuition or other charges which schools usually collect from pupils.education.2 years for 5 years of primary schooling by 33 percent indicate the need to focus on the qualitative aspects of education to make the right more meaningful for children. the first externally funded basic education project in Andhra Pradesh was drawn up with British support. Compulsory education as per the bill means and implies an obligation on the part of the appropriate Government to take all steps to ensure that every child is enrolled and retained till the prescribed level of education.

non-formal education and adult education within a single comprehensive framework. (c) education planning and management. Nine main areas of action were identified for the improvement of primary education within the chosen districts. to plan a district specific programme. (b) reading and mathematics teaching and learning. DFID. (f) development of instructional materials. the Shiksha Karmi Project was started in Rajasthan with assistance from the Swedish Government. The issuance of grants and not loans to States by the Centre ensured that additional resources were created for States. 40 crores annually. Under the DPEP. 68 . State Governments received nearly 85 percent of the total costs as transfers from the Central Government. Around the same time the United Nations Children’s Fund (UNICEF) too came forward to support the Bihar Education Project (BEP).focussed broadly on two main components: construction of schools and teacher training. (g) new methods of pedagogy. European Union and UNICEF pursued in the 1990s made individual districts the focal point of its intervention. (e) alternative and non-formal education. The project sought to address the problem of inadequate schooling facilities in rural areas and experimented with alternatives to primary schooling. The DPEP. selected districts were each given a sum of Rs. These included: (a) multi-grade teaching. the BEP sought to integrate all three components related to primary schooling. (h) in-service training and (i) educational research and evaluation. In 1987. Based on a holistic vision of basic education. (d) school management and effectiveness. ensuring accessibility of primary education to all. funded jointly by the World Bank. Under the DPEP.

while there is relatively little disagreement over 106 In its correct sense. 69 . must decide on making available help which is otherwise not being provided through the market. Whereas the scope and the declared objective of relief and reconstruction aid is more or less short-term and limited to making available humanitarian assistance. trade. As a result. reconstruction. stabilisation aid to ease the shortterm balance of payment problems. and finally long-term development aid.106 No matter what label is used the subject of aid remains controversial. as both cannot be treated as synonymous. For aid to exist. i. the country or agency providing the assistance. The subject of development aid has generally been a controversial one. stabilisation and project aid involves a more long term engagement. development aid has usually been justified by donor countries for the following ends: relief in the form of consumer goods designed to alleviate acute suffering in the short run.4: International Cooperation and the Right to Development in India The brief description of externally funded projects in education in the section above. this simple rendering of help across borders. these can hardly be considered as foreign assistance. the Marshall Plan type of aid to repair damages on account of war or other catastrophe. in the form of investable resources. A phenomenon largely of the post-Second World War period. designed to ease the shortage of domestic savings and to alleviate chronic poverty. encompassing a broader agenda of concerns than the mere objective of providing help. the term aid refers only to those parts of capital inflow that are not provided for by the market.e. Thus while private capital movements may yield substantial benefits to less developed countries. takes us onto the next part of the discussion concerning international assistance and its role in the facilitation of rights in India. It is important therefore to distinguish between foreign capital inflow and aid. In ordinary everyday usage while the word “aid” refers to financial or material help provided. But when the main protagonists involved in the process are nation states and other politically motivated actors. evoking a multiplicity of emotional and intellectual responses. commonly by one country to another. takes on surcharged overtones.

it is primarily the third.107 External assistance has not just helped ease the pressure of resources for social sector programmes. but have also supported Government initiatives in creating decentralised and participative models of planning. Judging the performance or contribution of aid without recognizing local level obstacles in such a situation would thus be unfair. certain clarifications on aid are in order. it may be stated that aid coming in during the 1990s following the structural adjustment agreement of 1991. While it may not be possible to clearly pinpoint the specific contribution of aid to the realisation of rights. and the fourth type of development aid. In recent years. External Assistance Brochure 2001-02. does not mean 107 Department of Economic Affairs. such as poor response rate. Recent assistance coming in for health and education serve as relevant illustrations of the above. in support of the programme of economic reforms currently underway. At this stage. For example. India has been a beneficiary of the above mentioned forms of aid at some point of time or other. the design of the aid programme may itself be at fault. 70 . the aid package has largely consisted of a combination of project cum policy loans and grants from both bilateral and multilateral agencies. has been largely instrumental in inducing policy-level reforms in important sectors of the Indian economy. the external assistance coming in for social sector projects has increased by nearly six times between the period 1992-93 and 2001-02. At the same time however. Of late. however. weak administrative structures. For example the principle of selectivity that justifies the giving of more aid to countries undertaking reforms. that have generated the greatest amount of controversy and debate. The ability of aid to deliver the desired results depends to a large extent on the domestic and social milieu of the specific society that it seeks to serve.relief and reconstruction aid. Government of India. etc. donor agencies have little control over certain limitations that may exist at the ground level. low capacity building.

Assessing Aid: What Works. Karnataka. The selection based on the above criteria obviously does not give importance to the extent or range of deprivation. it refers to the right that people have over the direction of the development process. participation refers to the mechanism for ensuring that people have say in the decision that affect their lives and that they become aware of their entitlements so that they can claim them. Andhra Pradesh in this context has been one of the main beneficiaries followed by Uttar Pradesh. rather than simply being consulted about projects or policies that have 108 World Bank. What Doesn’t and Why? (Washington DC. (b) have expressed interest in entering into a partnership with the World Bank. As defined in the language of rights.108 The World Bank’s Country Assistance Strategy for India provides an useful illustration of how an aid framework governed by principles that makes acceptance of market-led reforms the condition for assistance. In other words. 1998). or (c) where poverty levels are relatively high. A similar problem lies with the World Bank’s notion of participation. Instead. Adherence to the principle of selectivity demands that the ddevelopment projects or programmes be encouraged in only those States whose governments have (a) chosen to embark on a comprehensive programme of economic reforms. Such a selective policy of assistance has serious implications from the rights perspective. including fiscal and governance and sectoral reforms of key sectors such as power. partnership and a programmatic approach. Orissa and Rajasthan of World Bank aid.that the aid will necessarily be provided to ameliorate poverty in the worst-off countries. The selection of districts in Kerala in the first phase of the DPEP and not Orissa or any other educationally backward state confirms the above thesis. The World Bank’s Country Assistance Strategy (CAS) for India is based on three strategic principles— selectivity. 71 . be contrary to the rights framework. the choice of states depends upon the assessment of likely impact.

Considering that the loans are processed ostensibly for the benefit of the public. etc. acceptance of the rights framework is still not universal. who also ultimately bear the costs of repayments. The selection of partners has been ad-hoc— the World Bank’s interactions with civil society are restricted to a small circle of non-governmental organizations (NGOs) of friendly disposition. transparency and accountability in development. The rise of anti-World Bank struggles in several project areas accompanied by growing State repression confirms the limited role/acceptance that non-conformist organisations have in decision-making.already been decided upon. While donors have generally been favourable to the idea of institutionalising the rightsbased approach to development in the context of their country programmes in India. While the World Bank has formally acknowledged the importance of participation. It may be recalled that the campaign by the oustees of the Narmada Dam in 1991-92 compelled the World Bank administration to undertake certain structural changes such as the establishment of an Inspection Panel to review cases of violation of rights in World Bank-sponsored development projects. it has however made very little effort to institutionalise these principles in its country operations. however the public neither gets to participate in the process of policy formulation nor do they have access to the final loan documents that remain shrouded in secrecy under the Officials Secrets Act. Ironically. While the language of participation and accountability has been adopted by the World Bank as part of its Country Assistance Strategy. setting up of Public Information Centres. it would seem natural to expect a measure of transparency in the dealings. the thrust of the World Bank’s focus on participation has been solely on gaining inputs for its projects rather than on broadening the realm of participation. In the four cases that have come up before 72 .

the introduction of a rights-based strategy to poverty alleviation provoked a shift from more standard and traditional interventions focused on the improvement of people’s incomes through economic growth toward interventions focusing on poverty alleviation as a process of expanding fundamental choices and freedoms of people. India: Coal sector Rehabilitation Project (2001) and India-Mumbai Urban Transport Project (2004) See Inspection Panel. Under this initiative. 110 Examples of bilateral organisation who have embraced the rights approach in their operations in India include Department for International Development.the Inspection Panel from India. World Bank and others. 73 . UNIFEM. Additionally the principles of universality and indivisibility of rights implied the absence of target groups except consideration for those belonging to the disadvantaged sections of the society. 109 UNICEF in this context was the first agency to adopt the rights-based approach to its country programmes in 1996. the Panel in its report have confirmed the violation of rights in the course of the World Bank’s operations. donor institutions such as the WHO. UNICEF. ILO. in two of them. India: Eco Development Project (1998). For example. have 109 India National Thermal Power Corporation (19970. however. The Sitamarhi district plan that it took up as part of its Bihar Education Project represented a positive commitment towards actual institutionalisation of participatory structures in development. Overall.110 The coming together of such organisations under the United Nations Development Assistance Framework (UNDAF) initiative where India is one of the 18 countries selected by the international community for preliminary testing of the UNDAF initiative increases the probabilities of the gradual and steady incorporation of the rights-based approach in development cooperation. A similar rights-based approach was adopted by the United Nations Development Programme (UNDP) too. Accountability at the World Bank (Washington DC. (DFID) and NORAD. 2003). there has been a gradual and steady incorporation of the rights language at both the multilateral and bilateral levels.

While the DPEP makes explicit references to rights such as participation. confirms the above thesis. Department for International Development (DFID) (UK). The DPEP in this context serves as a relevant example. Nominated education specialists and other professionals are constituted into teams that visit selected districts of the project states. UNICEF. which meet regularly. The DPEP is both supervised and evaluated jointly by donor agencies including the World Bank. European Community. in various sectors of the economy. in its focus on decentralised planning. gender. Netherlands and the Government of India. Consensus at present is primarily limited to the coordination of finances across programmes. follows a highly selective policy that has serious implications from the rights perspective. village education committees. Such a strategy not only creates a divide between states/districts but more importantly has serious ramifications in terms of the achievement of the goals of human 74 .agreed to channel the flow of aid resources through a common programme established under UNDAF. the formation of an umbrella organization converging external funding for primary education is a commendable innovation. and not Orissa or any other educationally backward state. for example. The DPEP programme that operates at the level of districts. it does not present an ideal example of a programme that adheres to the right to development framework. The selection of districts in Kerala in the first phase of the DPEP. just curricula. The selection based on the criteria of high and probable returns does not give importance to the extent or range of intra-district deprivation that exists in parts of the country. The World Bank’s Human Development Network has specially identified the DPEP as a suitable case study of Education Reform and Management practice. and accountability. twice a year. Given the situation in some other countries where a multitude of donor agencies work on primary education.

The states of Rajasthan and Madhya Pradesh have passed such an act. The Court cited Article 41 of the Indian Constitution that clearly calls upon the State “within the limits of its economic capacity and development” to effectively make provisions for securing the right to education for all citizens. “The right to education flows directly from right to life. Such a selective approach to aid allocations in fact contradicts the basic spirit of development cooperation. The Court drew on the empowering role of education in enhancing the intrinsic dignity and worth of human beings.development. Education that was previously a Directive Principle of State Policy has been granted the status of a Fundamental Right.” The focus on the creation of an institutionalised mechanism of providing the public with access to information is another salient feature. The Supreme Court. The public have the right to obtain duplicate photocopies of all documents related to development projects in the village/block at an affordable price. The right to life under Article 21 and the dignity of an individual are not being assured unless it is accompanied by the right to education. The Supreme Court Order that formed the basis for the Constitutional Amendment observed Directive Principles and Fundamental Rights to be complementary to each other. State governments have been asked to pass the Right to Information Act that would make it mandatory for the government offices to make available all vital information related to public programmes to the people. empowering the local public to exercise the right to participation at the village level. 5: Right to Development in the Future Positive signs of change are thus gradually becoming more and more visible. in face of complaints received that Governments were 75 .

was a landmark decree that sought to rectify the power equations between doctors and patients. The judgement by the Supreme Court in the Indian Medical Association vs. Dr. The significant judgement by the State Commission of Orissa in Smt Sukanti Behera vs. The judiciary has relied heavily on Article 21 of the Constitution that recognises the right of every citizen to live with human dignity. However. acknowledging that medical services came within the purview of the broader provisions of consumer protection. The linkages drawn by the Supreme Court between the rights to food.overcharging the public for photocopying. Shantha (1995) settled the matter by explicitly including medical services under the protective sheath of the Consumer Protection Act. primary education and basic health services and the right to life are important as they establish the basis for a holistic and comprehensive human right to development. and has committed itself to establishing a rights-based order. has explicitly fixed the cost of reproduction to be no more than a rupee for a single page. these developments represent just mere beginnings. it still has a long way to go before it begins to implement programmes within the proposed right to development paradigm. Judicial interpretations such as the above have been instrumental in creating the necessary space for the gradual institutionalisation of a rights-based approach to development in India. P. V. Sashi Bhusan Rath (1993) upholding the rights of patients. Until then the medical fraternity had generally resisted. Similar empowerment of the public has also happened in the case of health. 76 . While the Government has recognised through policy legislations the importance of instituting a rights-based approach to development. Patients in India have been given the legal power to challenge the quality of health care services provided to them under the provisions of the Consumer Protection Act (1986).

The absence of employment opportunities arising out of the relatively less developed character of such areas can in some cases become the main reasons for social and political conflicts. These money-order based economies as they are popularly called have little infrastructure to support employment opportunities within the State. social. In such situations. There are many States such as the hill state of Uttaranchal. social and cultural rights in the process of development. where remittances from outside play an important role in the running of the local economy. cultural and political. The non-implementation of labour laws. The absence of employment opportunities at the village level is responsible for the steady exodus of people from the rural to urban areas. does not make much headway. leading to an escalation of both political and social violence. displacement related movements and others. The history of the rights 77 . These include workers in both organised and unorganised sectors. or the fixing of agricultural wages or recognition of traditional land rights. peasant struggles. Invariably. all of them have engaged with the question of obligations and the rights of individuals in development in some form or the other. to view the movements as being simple “law and order problems” as is the case of Andhra Pradesh and Bihar where Marxist-Leninist parties have been waging a movement against the State’s development policies. the whole problem of unemployment requires a more systemic treatment. The last five decades and more have seen the emergence of a number of social movements of different political hues and colour articulating a strong critique of the existing model of development. The situation in the North Eastern States is a relevant example of how economic poverty can become the flashpoint for ethnic strife. reflect significant attempts at highlighting the importance of economic.However. The central question remains development – that includes all aspects personal. economic.

especially in the post-Independence phase. provident fund. the 78 . For example. economic and cultural rights. Agricultural workers. the bulk of the rural workforce. Presently. maternity benefits. This inequality gets captured in the highly skewed distribution of income and opportunities. Unfortunately in India while politically all citizens are given equal rights. The structure of land ownership plays an integral part in determining the standard and quality of lives of those engaged in agriculture. exist on a regular basis only for those working in the organised sectors of the economy. Social security protection exists for a very small segment of the society. This section of the workforce that makes up for almost 99 percent of the total workers in the agricultural and trade sectors stands to be ironically excluded from the benefits that are provided under existing laws to those working in the organised sectors. pension. continued to be at the bottom of the agrarian hierarchy with relatively no other asset but labour to fall back upon. Reforms in land relations in the post-Independence period such as the abolition of landlordism and subsequent equitable redistribution of land among small and marginal farmers did not take off as expected and contributed little to the restructuring of agrarian relations in the countryside. there is no such security. there is no such guarantee concerning the realisation of social. resulting in divisions of groups into visible categories of the privileged and the under-privileged. The impact of an institutionalised social protection mechanism over the lives of agricultural labour serves as a relevant illustration of the above irony. is built up of narratives concerning livelihood questions. across India about 93 percent of the total workforce is employed in the unorganised sector. etc. Although the State did provide for a Minimum Wages Act as far back as 1948.movement in India. For a large part of the work force involved in agricultural or small-scale manufacturing or mining work.

0 Punjab 60 70.8 73. http://labourbureau.htm 79 . It is ironic that whereas the provision of a dearness allowance in the organised sector ensured regular revisions of the wage rate.3 Orissa 83 40.1: Structure of Minimum Wages Across Sample States (2001) Source No. there was relatively little improvement in social conditions.1 Kerala 35 30.0 105.1 below provides a glimpse of the existing variations in the structure of wages across a few states.3 Karnataka 59 40.5 79. for the rest of the agricultural workforce.rigidity and divergence in wage rates between states proved to be of little benefit to workers across the country. However.0 40. no such attempt was made to revise minimum wages that seemed to stagnate at exceptionally low levels.5 90. Table 5.6 Goa 18 21.0 58.nic.2 Maharashtra 63 8.0 184.4 119.9 78. of Scheduled Employments for Range of Minimum wages per which minimum wages have been day (in Rs.0 140.2 Andhra Pradesh 62 25.8 Bihar 74 41. The initiative undertaken in Kerala where the State government provided for pension and other family benefits to agricultural workers is a noted exception.in/wagetab.7 Source: Government of India.0 Tamil Nadu 60 32.0 60. Table 5.4 Rajasthan 38 47.) fixed/revised Minimum Maximum Central Government 44 47.

health. including through international cooperation. the unemployment dole that has been fixed per person per day continues to be Rs. 80 .02 percent of its GDP on financing education. the central Government spends only 4. It is notable that in its consideration of the report submitted by the Government of India. education. the Government spends approximately Rs.2. a large part of pension payments are made by both Central and State Governments. If we take a broader look at social security encompassing public expenditures made towards. whereas the number of occupations covered under the minimum wage law has been 18. the Committee on the Rights of Child has expressed concern at the slow increase in the budget allocations for education. For example. Not only are there variations existing at the level of wage rates.111 However. these too amount to a very small portion of the resource plans. nutrition etc. of appropriate human resources… (b) develop ways to assess the impact of 111 Tenth Plan. 396. there is also a huge difference in the number of professions to which minimum wages have been made applicable. In its report. p. In Goa. the Committee has specifically called upon the Government to (a) make every effort to increase the proportion of the budget allocated to realisation of children’s rights to the maximum extent…of available resources” and in this context. Presently. it is 83 in Orissa. a sum that would probably just about fetch a cup of tea keeping in mind the rising cost of basic commodities.The above table shows the diversity in basic minimum wages across states. 225 crores towards social security schemes. The review of the number of revisions made since the Act was first brought into being in 1948 reveals the relatively inflexible nature of wage rate escalation. to ensure the provision. II. Vol. A similar picture is visible in other cases too. in the Employment Guarantee Scheme fixed by Maharashtra. 28. At the national level.

The relationship between globalisation and rights at present is double-edged.budgetary allocations on the implementation of children’s rights. without making additional allocations in the total volume of resources. Ironically. In the present context of globalisation. the rights framework provides a useful entry point for implementing a process of rights-based growth.” The above issue draws attention to restructuring of resource allocations necessary to ensure the realisation of basic rights within the country. A number of unresolved issues relating to the implementation of the right to development in India continue to exist. But globalisation also undermines the State’s relative autonomy to carry out its responsibilities. The dilemma presents itself in a cyclic form.02 percent in 2001. The practical integration of a rights perspective with development requires a systematic change in some of the fundamental precepts of policy making. and to collect and disseminate information in this regard. The Government has yet to meet its target of allocating 6 percent (GDP) towards education. When states weaken. Whereby globalisation generates a causal demand for social development. there is very little coordination and convergence of programme objectives and goals that can potentially help tide over some of the bottlenecks obstructing the achievement of the desired goals of development. The focus of the restructuring must be on positive redistribution that does restrict the exercise to an internal reallocation of resources within a particular sector. At the local level. the present exercise of readjustment does precisely the same. particularly its obligations related to social development and protection. where there is a paucity of resources.64 in 1951 to 4. as well as enhance people’s capacity to take up new challenges. there are compelling arguments for strengthening international social policy norms and principles to guard against new forms of vulnerability. it ironically also 81 . The total expenditure for education as a percentage of GDP has grown comparatively very little from 0.

82 .at the same time affects gravely the capacity of individual actors in meeting the goals of social development. The above contradiction therefore makes it more imperative for Indian policy makers to consciously interweave the rights framework into existing programmes of development.

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